CZG (a pseudonym)[1] v Victims of Crime Assistance Tribunal and Attorney-General for the State of Victoria
[2020] VSCA 120
•13 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0056
| CZG (a pseudonym)[1] | Applicant |
| v | |
| VICTIMS OF CRIME ASSISTANCE TRIBUNAL | First Respondent |
| and | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Second Respondent |
[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by use of pseudonyms.
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| JUDGES: | MAXWELL P and PRIEST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 April 2020 |
| DATE OF JUDGMENT: | 13 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 120 |
| JUDGMENT APPEALED FROM: | [2019] VSC 203 (McDonald J) |
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ADMINISTRATIVE LAW – Judicial review – Appeal on question of law – Financial assistance for victims of crime – Application by ‘primary victim of an act of violence’ – Applicant very seriously injured in shooting – Application for assistance refused by Victims of Crime Assistance Tribunal – Application to VCAT for review of refusal – VCAT affirmed decision under review – Power to make no award of assistance or to reduce award – Obligation to consider applicant’s character and criminal record – Whether tribunal first had to satisfy itself of applicant’s eligibility – Whether refusal decision legally unreasonable – No error – Decision reasonably open – Distinction between jurisdiction and power – Distinction between specific error grounds and unreasonableness ground – Leave to appeal refused – Victims of Crime Assistance Act1996 ss 7, 8, 8A, 25, 32, 50, 52, 54, 59 – Victorian Civil and Administrative Tribunal Act1998 ss 42, 51, 148.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M W Harding SC with Ms K Grinberg | Gordon Legal |
For the First Respondent | No appearance | |
| For the Second Respondent | Mr L T Brown with Mr J Bayly | Victorian Government Solicitor |
MAXWELL P
PRIEST JA:
Summary
On 1 February 2014, in the circumstances described below, a person (‘AP’) attempted to murder the applicant, CZG, then aged 19 years, by shooting him in the neck. AP’s bullet injured CZG’s spinal cord, leaving him a quadriplegic.[2]
[2]AP was convicted by a jury of attempted murder and sentenced to 12 years’ imprisonment with a non-parole period of nine years.
In April 2014, CZG applied to the Victims of Crime Assistance Tribunal (‘VOCAT’) for assistance under the Victims of Crime Assistance Act 1996 (the ‘Act’), claiming assistance as a ‘primary victim of an act of violence’.[3] On 12 October 2017, VOCAT refused that application. Its reasons were later summarised as follows:
VOCAT accepted that the impact of the offending had been catastrophic on the applicant. However, taking into account matters including the nature and prevalence of the violent criminal offending undertaken by the applicant between the age of 15 and 19 years, the serious injuries which he caused to victims and the fear he incited, his threatening pursuit of his former girlfriend including threatening to kill her on 1 February 2014, the contribution made by that conduct to the confrontation which took place on 1 February 2014, and his armed presence at that confrontation, VOCAT concluded that to make an award of assistance to the applicant under either s 8 or s 8A of the Act would be contrary to the intention and purposes of the Act and would not accord with community expectations.[4]
[3]See [23] below.
[4]See CZG v Victims of Crime Assistance Tribunal [2018] VCAT 523, [12] (Senior Member E Wentworth) (‘VCAT Reasons’); CZG v Victims of Crime Assistance Tribunal [2019] VSC 203, [12] (McDonald J) (‘Reasons’) (emphasis added).
VOCAT’s decision rested on s 54 of the Act, which requires the tribunal ‘in determining whether or not to make an award of assistance or the amount of assistance to award’ to have regard to (relevantly):
(a)the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence;
…
(c)whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation;
…[5]
[5]The Act s 54(a), (c).
CZG applied to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) for a review of VOCAT’s decision refusing him assistance. In its review jurisdiction, the Tribunal ‘stands in the shoes’ of the primary decision-maker, and makes a fresh decision on the merits. After hearing evidence from CZG, and considering submissions on his behalf, the Tribunal affirmed VOCAT’s decision.
CZG sought leave to appeal to the Supreme Court on questions of law, under s 148(1)(b) of the Victorian Civil and Tribunal Act 1998 (the ‘VCAT Act’). McDonald J granted leave on four questions of law but dismissed the appeal. CZG now seeks leave to appeal that decision.
CZG advances two principal contentions. The first is that the Tribunal misapplied the provisions of the Act, in failing to consider his eligibility for assistance before addressing the possible disqualifying effect of s 54. The second is that its decision to refuse him assistance under s 54 was legally unreasonable.
For reasons which follow, we would refuse leave to appeal. As to the first contention, the Tribunal’s decision-making process accorded with the requirements of the Act and there was no error of law. There was no issue before the Tribunal about CZG’s eligibility for assistance as a primary victim of an act of violence. What was in issue was whether, having regard to s 54, the Tribunal should exercise its power to make an award. In the circumstances, it was both necessary and appropriate to address s 54 before considering whether, if an award were to be made, CZG would be entitled to particular amounts under the applicable provisions of the Act.
With respect to unreasonableness, an appeal on a question of law — as this is — is not an occasion to revisit the merits of the decision under challenge. As the High Court made clear in Minister of Immigration v Li,[6] there is no warrant for intervention on the unreasonableness ground unless the decision under challenge ‘lacks an evident and intelligible justification’[7] or is shown to fall outside the ‘area of decisional freedom’[8] committed to the decision-maker at first instance. As explained below, the Tribunal gave clear and cogent reasons for its decision, and it was reasonably open to the Tribunal to make the decision which it did.
[6](2013) 249 CLR 332; [2013] HCA 18 (‘Li’).
[7]Ibid 367 [76].
[8]Ibid 351 [28].
As the Tribunal said in its reasons, many in the community ‘would no doubt feel compassion’ for CZG.[9] He suffered an extremely serious injury, the impact of which has been profound. He requires significant assistance in his day-to-day activities. His life and the lives of those who care for him have been altered beyond recognition.
[9]VCAT Reasons [80].
The legislature has made clear, however, that not every victim of crime is eligible for assistance. As the Senior Member correctly stated, s 54 of the Act required her to have regard to CZG’s ‘past criminal history, his involvement in events leading up to the shooting, and his conduct before, during and after’.[10] The section expressly contemplates that consideration of matters of that kind may result in the tribunal deciding to make no award at all, notwithstanding the adverse consequences of the act of violence.
[10]Ibid [9].
Much of the discussion which follows concerns the power of the decision-maker under the Act to make an award of assistance. At first instance, that power is exercised by VOCAT. On review, the power is exercised by the Tribunal. The questions of construction which arise for consideration are relevant to the exercise of that power whether at first instance or on review. For that purpose, we will mostly refer to ‘the tribunal’ or ‘the relevant tribunal’.
Procedural history
As already noted, CZG applied to the Tribunal for a review of VOCAT’s decision refusing him assistance. He thereby invoked the Tribunal’s review jurisdiction under s 59(1) of the Act and s 42(1) of the VCAT Act. On 5 April 2018, the Tribunal affirmed VOCAT’s decision to refuse CZG’s application.[11] The Senior Member said:[12]
[11]VCAT Reasons. VCAT also made the following orders under s 17 of the Open Courts Act 2013 and s 43(3) of the Act providing:
2. The applicant in this proceeding shall be referred to as CZG — which is a randomised acronym to prevent identification — in documents published by the Tribunal.
3. The publication of a report of this proceeding to the extent that it would disclose the name and address of the applicant or the publication of any information derived from this proceeding which could reasonably be expected to enable such identification, is prohibited. This order applies throughout Australia, and operates for a period of 50 years.
[12]VCAT Reasons [73]–[80].
The seriousness of the applicant’s injury and the impact on him of the act of violence weigh in favour of an award of assistance, as submitted on his behalf.
It is the sole matter, however, weighing in favour of an award, and it is far outweighed by his past, violent, criminal history; the harm he caused by his own offending; his direct contribution to the events leading up to the confrontation in which he was injured; his unlawful and violent threat to kill his former girlfriend on the day; and his conduct in attending the confrontation armed and prepared to engage in violent conflict.
I agree with the view of the VOCAT member that to make an award of assistance to the applicant, whether reduced or otherwise, under either s 8 or s 8A of the [Act] would be contrary to the intention and purposes of the Act and would not accord with community expectations.
I have taken into account that the findings of guilt in his criminal history related to offences committed before he turned 18. As submitted, they are to be seen in a different light to adult offending. They are nevertheless serious offences with a direct impact on the victims and society.
Further, in this case, in addition to previous serious offending there is also direct involvement by the applicant in the events leading to the act of violence, including a threat to kill made on the day.
I have taken into account the evidence about the applicant’s family history and his attempts to reform himself prior to the act of violence. Given the evidence of his conduct in the days and hours leading up to the act of violence, I am not persuaded that any reformation had taken place. In particular, his threat to kill his former girlfriend because she had made trouble for him supports a conclusion that his violent character had not abated.
Taking into account the matters I must have regard to, I have decided to refuse the application for an award of assistance under s 8 of the [Act] for expenses, and s 8A for special financial assistance.
While many in the community would no doubt feel compassion for him, as I do, the applicant is not an appropriate recipient of an award of assistance under the [Act] in my view. His own violent criminal conduct combined with his direct contribution to the events leading up to the act of violence have disqualified him.
In his application pursuant to s 148(1)(b) of the VCAT Act, CZG relied on five questions of law, A to E.[13] McDonald J granted leave to appeal on questions of law A, B, C and D, but dismissed the appeal. He refused leave to appeal on question of law E.[14]
[13]The questions of law, A to E, were formulated as follows:
A.Whether the affirmation order made by VCAT on 5 April 2018 constituted a valid exercise of the power conferred by s 51(2) of the VCAT Act if, upon the proper construction of the [Act], VCAT was required to and did not satisfy itself of the matter specified by s 50(1)(c) of the [Act].
B.Whether the affirmation order constituted a valid exercise of the power conferred by s 51(2) of the VCAT Act if, upon the proper construction of the [Act], VCAT was required to determine the review of that order by making an order setting it aside under s 51(2)(c) of the VCAT Act.
C.Whether, properly construed, s 54 of the [Act] is a provision that confers power to refuse to make an award of assistance (including by means of an order made under s 51(2)(a) of the VCAT Act) prior to the appellant’s eligibility for assistance being determined.
D.Whether, on the proper construction of the [Act], the determination of whether to make an award of assistance (or the amount thereof) under s 54 of that Act must be undertaken for each kind of assistance that an applicant for assistance is eligible to receive under the [Act].
E.Whether the statutory discretion conferred by s 54 of the [Act] was exercised by VCAT in a manner that was legally unreasonable.
[14]Reasons [88].
CZG’s proposed grounds of appeal assert that the judge erred by:
1. … concluding that the [Tribunal] had satisfied itself that it had jurisdiction to affirm the decision of [VOCAT] pursuant to s 51(2)(a) of the VCAT Act.
2. … failing to find:
(a) that, properly construed, s 54 of the [Act] did not authorise a decision refusing assistance without the tribunal first making findings about and then giving consideration to the types and quantum of assistance the Applicant was actually eligible to receive under s 8 and s 8A of the [Act]; and
(b) that by reason thereof, [the Tribunal’s] order purporting to affirm the decision of [VOCAT] under s 51(2)(a) of the VCAT Act was vitiated by material error of law and of jurisdiction.
3. … concluding … that the Applicant had not established an arguable case of error in relation to the question of law posed by Question E of the Notice.
4. … failing to find that the [Tribunal’s] purported exercise of the power conferred by s 51(2)(a) of the VCAT Act was vitiated by material error of law because the decision to refuse assistance under s 54 of the [Act] was legally unreasonable.
The circumstances of the shooting
CZG gave evidence in VCAT and was cross-examined. In summary, he said that, some days before 1 February 2014, he was with his then girlfriend, Stacey, in her car when they encountered his former girlfriend, (‘SN’), driving in the opposite direction. Stacey, who was driving, decided to follow SN’s car because she was angry with her. CZG asked Stacey to continue driving to the gym rather than follow SN, but she kept following SN and would not stop. CZG said that he just sat in the passenger seat because he did not want to look bad in front of Stacey. Although he did not see SN’s face in her rear vision mirror when they were behind her, CZG agreed that she would have been scared.
CZG gave evidence that, a few days after Stacey and he had followed SN’s car, he contacted SN by telephone. He said that their conversation was friendly and normal, and that he had contacted SN because he had had a fight with Stacey. It would seem that, after that call, SN contacted an acquaintance, (‘ZD’), about CZG. ZD made a phone call to CZG, and a number of text messages were then exchanged. CZG claimed that ZD threatened him. At that time, CZG said, he did not know who ZD was. ZD told CZG: ‘If you don’t meet up with me I’m going to run through your house. I know where you live’. CZG said that he was living at his grandmother’s house with his mother, brother and grandmother at the time.
In his evidence, CZG said that he got angry, because the threats were that they were coming to his house and were ‘gunna touch my family’. He sent a text message to SN threatening her. By then, ZD had mentioned her name. Although CZG accepted that the threat that he had made to SN was a bad threat, he could not recall what he said. He agreed, when it was suggested to him that he had threatened to kill SN, that he probably had. CZG also agreed that he probably used the words ‘I’m going to kill youse’ in responding to the men who were contacting him, because he ‘was very angry’.
CZG said that he agreed to ZD’s demands that they meet. He armed himself with a machete and went to the meeting accompanied by two friends. His two friends armed themselves with golf clubs. When asked why he armed himself, he said: ‘Just for protection really. If they come at me with something at least I have something’. He also said:
Like they were gunna — he’s like, ‘I’m gunna stand over you, you’re gunna cop it’ ... I was really worried. I didn’t know what to do. It’s come at — ’cause I didn’t [want] no one to come to my house and harm my family so I just – I thought in my head I have to do it. I have to meet up so I can just get it over and done with.
ZD attended the meeting accompanied by AP and AP’s girlfriend. One of CZG’s friends threw a glass bottle at AP’s car, which hit AP’s girlfriend in the face. CZG was then shot by AP, who mistakenly believed that the bottle had been thrown by CZG.[15]
[15]VCAT Reasons [5]; Reasons [2].
The Senior Member summarised the events leading up to CZG’s shooting as follows:[16]
[16]VCAT Reasons [48]–[62].
The confrontation in which the applicant was shot followed events in which the applicant was directly involved.
A few days before, while a passenger in a car with [Stacey] the applicant had by chance seen [SN] driving in her car. His evidence before me was that [Stacey], who was driving, had done a U-turn and chased the car. He told police that they chased her ‘just for a laugh’. He later stated that it was not really for a laugh, that [Stacey] was angry with [SN].
Regardless of why they did it, there is no doubt that it frightened [SN]. She told police that her passenger had called Epping Police who told them to drive to the police station. They had also called ‘000’. She told police the applicant had threatened her with a crowbar when she had stopped her car outside Epping police station.
The applicant denies that he was armed or threatened [SN] with a crowbar. He said in evidence before me that she turned left and stopped outside Epping police station. They then drove away without stopping.
I am not able to resolve the question of whether or not the applicant threatened [SN] with a crowbar, save to observe that it would seem extremely foolish to do so outside a police station. The evidence is consistent, however, that she took the step of driving to the Epping police station. I am satisfied that the applicant was directly involved in an incident which would, objectively, have been frightening for [SN] and that she took the step of driving to a police station for protection.
The incident provides some context for [SN]’s response to a call the applicant then made to her on 1 February 2014.
The applicant said at the hearing the call was normal and friendly, that he called her because he’d had a fight with [Stacey].
Nevertheless, it is clear that she was concerned by the contact from the applicant because she asked [ZD] for assistance. [ZD] and another called the applicant threatening him and telling him he had to meet them.
In the course of the increasingly hostile communications, the applicant sent a message to [SN] threatening to kill her. He told police he was angry with her for ‘making trouble’. He agreed that he had also sent a message to the men that he was going to kill them.
It is not in dispute that the applicant went to the agreed meeting place armed with a machete and accompanied by two others armed with golf clubs.
Taking the above into account, I am satisfied that the applicant had a direct involvement in the sequence of events that led to the act of violence, and that his conduct is highly relevant under s 54(a) and (d) of the Act.
The confrontation would not have occurred but for the incident in which [SN] was chased and frightened, and the applicant’s subsequent call to her. Whatever his reasons for making the call to her, had he not done so she would not have asked for help from [ZD]. She asked for help because she was, quite reasonably, frightened and concerned by the previous incident.
While the applicant is not responsible for any threats [ZD] made to him, he engaged in unlawful behaviour and escalated the conflict by making a threat to kill [SN], and making a threat to kill [ZD].
Further, instead of involving the police, he made the decision to arm himself, enlist two others and attend the meeting. While I accept that at the time he did not see any other alternative and did not want the other men to come to his grandmother’s house where he lived with his family; and I accept that he did not expect anyone to bring a gun, I am satisfied that he went expecting violent conflict and prepared to engage in in it.
It is not in dispute that the applicant did not throw the glass bottle which hit the offender’s girlfriend and that in any event the offender’s action were disproportionate to any provocation.
The applicant’s criminal history
As already noted, s 54 of the Act required the Tribunal to have regard to CZG’s criminal history. The Senior Member expressed her (unchallenged) findings in these terms:
The applicant was found guilty of causing serious injury in 2010 when he was 16, a violent assault in which he stabbed the victim seven times in the leg, abdomen and shoulder, in an altercation after the applicant and another person attempted to gatecrash a party (the 2010 offence). The victim had pursued the applicant and threw a punch at him. The applicant fled the scene after stabbing the victim. The victim required emergency surgery, and was hospitalised for more than a week.
The applicant was found guilty of an armed robbery in 2011 when he was 16 and on bail for the 2010 offence. He was armed with a baseball bat and, with another co-offender, also armed, chased, threw to the ground and robbed a young man walking along the street (the 2011 offence).
He was found guilty of an armed robbery in 2012 at a McDonalds’ store, just before his 18th birthday, while on parole for the 2011 offence. The applicant was armed with a sledgehammer, his co-accused were armed with an axe and a baseball bat. They assaulted and intimidated staff, demanded and stole cash takings and smashed computer terminals on the cashiers’ desks at the store (the 2012 offence).
The victims’ impact statements in the criminal proceedings, which were on the VOCAT file, make it clear that the applicant’s conduct had a serious effect on them. I am satisfied that his criminal conduct was a cause of repeated and substantial detriment to the community.[17]
[17]VCAT Reasons [41]–[44].
Provisions of the Act
The basis of CZG’s application for assistance was that he was a ‘primary victim of an act of violence’. Section 7 of the Act defines a primary victim of an act of violence as follows:
7 Who is a primary victim?
(1) A primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her.
(2) A person is also a primary victim of an act of violence if he or she is injured or dies as a direct result of—
(a) trying to arrest someone whom he or she believes on reasonable grounds has committed an act of violence; or
(b) trying to prevent the commission of an act of violence; or
(c) trying to aid or rescue someone whom he or she believes on reasonable grounds is a victim of an act of violence—
whether or not an act of violence is actually committed.
By s 3(1), an act of violence is defined to mean:
a criminal act or a series of related criminal acts, whether committed by one or more persons, that has—
(a) occurred in Victoria; and
(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;
So far as relevant, ss 8 and 8A provide:
8 Assistance available to primary victims
(1) A primary victim may be awarded by the Tribunal assistance of up to $60,000 plus any special financial assistance awarded in accordance with section 8A.
(2) The amount awarded to a primary victim may be made up of amounts—
(a) for expenses actually incurred, or reasonably likely to be incurred, by the primary victim for reasonable counselling services;
(b) for medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence;
(c) of up to $20,000 for loss of earnings suffered, or reasonably likely to be suffered, by the primary victim as a direct result of the act of violence;
(d) for expenses incurred by the primary victim through loss of or damage to clothing worn at the time of the commission of the act of violence;
(e) for safety-related expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence.
(3) In exceptional circumstances, there may also be included in the amount awarded to a primary victim within the limit set by subsection (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.
...
8A Special financial assistance to primary victims for significant adverse effects
(1) Without limiting persons who are primary victims by virtue of section 7, for the purposes of this section a person is also a primary victim of an act of violence if he or she experiences or suffers any significant adverse effect as a direct result of an act of violence committed against him or her.
(2) A person may be awarded special financial assistance by the Tribunal in accordance with this section if the Tribunal is satisfied that—
(a) an act of violence was committed against the person; and
(b) the person has experienced or suffered a significant adverse effect as a direct result of that act of violence; and
(c) that act of violence is a category A, B, C or D act of violence for the purposes of this section.
…[18]
[18]Categories of acts of violence are set out in sch 1 of the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011. See reg 6 and ss 8A(5) and (6) of the Act.
By s 50(1), VOCAT may make an award of assistance if certain criteria are satisfied:
50 Making of awards
(1) The Tribunal may award assistance to an applicant if satisfied—
(a) that an act of violence has occurred; and
(b) that the applicant is a primary victim, secondary victim or related victim of that act of violence or a person who has incurred funeral expenses as a direct result of the death of such a primary victim; and
(c) that the applicant is eligible to receive the assistance.
…
Section 54 of the Act is pivotal. It requires VOCAT to have regard to list of matters in determining whether or not to make an award of assistance, or in determining the amount of assistance to award, as follows:
54 Matters to which Tribunal must have regard
In determining whether or not to make an award of assistance or the amount of assistance to award, the Tribunal must have regard to the following:
(a) the character, behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) or attitude of the applicant at any time, whether before, during or after the commission of the act of violence;
…
(c) whether the applicant provoked the commission of the act of violence and, if so, the extent to which the act of violence was in proportion to that provocation;
(d) any condition or disposition of the applicant which directly or indirectly contributed to his or her injury or death;
(e) whether the person by whom the act of violence was committed or alleged to have been committed will benefit directly or indirectly from the award;
(f) any other circumstances that it considers relevant.
The review jurisdiction of the Tribunal is defined by s 42(1) of the VCAT Act, as being
jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.
Here, it is s 59(1) of the Act — the ‘enabling enactment’ — which confers the review jurisdiction, providing that a person whose interests are affected by a final decision of VOCAT may apply to the Tribunal for review of that decision.
Section 51 of the VCAT Act spells out the Tribunal’s functions when exercising its review jurisdiction:
51 Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision-maker; and
(b)has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2)In determining a proceeding for review of a decision the Tribunal may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c)set aside the decision under review and make another decision in substitution for it; or
(d)set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
Ground 1: the jurisdiction of VCAT
As noted earlier, ground 1 contended that the judge fell into error
by concluding that the [Tribunal] had satisfied itself that it had jurisdiction to affirm the decision of [VOCAT] pursuant to s 51(2)(a) of the VCAT Act.
Properly understood, however, the complaint here advanced was not directed at the jurisdiction of the Tribunal but at its power to make an award of assistance. As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural and Indigenous Affairs v B:[19]
In a legal context the primary meaning of jurisdiction is ‘authority to decide’. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction.[20]
[19](2004) 219 CLR 365; [2004] HCA 20.
[20]Ibid 377 [6]. This statement was endorsed by the High Court in CGU Insurance Ltd v Blakeley (2016) 259 CLR 339, 353 [31]; [2016] HCA 2; see generally, Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) ch 1.
The same distinction applies here. As already noted, s 59(1) of the Act confers jurisdiction on the Tribunal, giving it ‘authority to decide’ an application for review of a final decision by VOCAT. Section 51 of the VCAT Act then identifies the functions and powers available to the Tribunal in the exercise of its review jurisdiction. Relevantly, under s 51(1) the Tribunal has ‘all the functions of the decision-maker’.
As will appear, the focus of this ground — and of ground 2 — was on s 50(1) of the Act (set out above). Under that subsection, the tribunal ‘may award assistance’ if satisfied of specified matters. As a matter of conventional terminology, s 50(1) would be said to confer power on the tribunal to make an award. It would not be characterised as a provision conferring jurisdiction. And, on an application for review, the power under s 50 is available to the tribunal in the exercise of its review jurisdiction.
This area of discourse is, of course, complicated by the established use of the adjective ‘jurisdictional’ in connection with exercises of power. Thus, the term ‘jurisdictional fact’ is a term often used
to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.[21]
Again, the term ‘jurisdictional error’ is used in relation to an administrative tribunal to refer to an error of law (such as ignoring relevant material or relying on irrelevant material) which affects ‘the tribunal’s exercise or purported exercise of power’.[22] We return to this point below.[23]
[21]Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148 [28]; [2000] HCA 5; See also Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120, 139 [43]; [2008] HCA 43.
[22]Craig v South Australia (1995) 184 CLR 163, 179; [1995] HCA 58; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 350–351 [81]–[83]; [2001] HCA 30; see further Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) ch 3.
[23]See below [49].
The basic distinction remains clear, however, and is of obvious utility in a context like the present. As we have explained, the Tribunal’s review jurisdiction was enlivened by CZG’s filing of his application for review of VOCAT’s decision, in accordance with s 59(1) of the Act. Its jurisdiction having been enlivened, the Tribunal had to decide whether the discretionary power to make an award of assistance should be exercised in CZG’s favour.
The principal submission in this Court, as it was before the primary judge, was that the relevant tribunal could not begin to address the s 54 questions — that is, whether or not to award CZG assistance and, if there was to be an award, how much it would be — without first being satisfied that CZG was ‘eligible to receive the assistance’, in accordance with s 50(1)(c). This argument was developed more fully in support of ground 2, to which we now turn.
Ground 2: eligibility for assistance
The contention advanced under ground 2 was that, unless and until the relevant tribunal had reached an affirmative state of satisfaction about each of the matters in s 50(1), the tribunal had no occasion — and no authority — to consider the possible application of s 54. In this case, it was said, the Tribunal on review was required — but failed — to satisfy itself in accordance with s 50(1)(c) that CZG was ‘eligible to receive the assistance’. Once again, the submission used the language of ‘jurisdiction’. According to the written case:
Sections 50(1) and 54 are located in a Division and Part of the Act headed ‘Awards’. Section 50(1) is the first provision in the Division and Part. A plain reading of the Division and the Part demonstrates that decision-making commences with the establishment of jurisdiction. If it isn’t, s 54 never arises because there is no award that can be made. Read in context, s 54 is only of significance if an award could be made and it becomes necessary to consider whether it should be.[24]
[24]Emphasis in original.
As already pointed out, s 50 is a provision concerned not with jurisdiction but with power. Moreover, it is only one of several provisions in div 4 which is concerned with the power of the Tribunal to award assistance to an applicant. Sections 52 and 54 also condition and limit that power. And, on ordinary principles of statutory interpretation, these provisions need to be read together in order to discern the legislature’s intention with respect to the exercise of that power.
Section 52 illustrates the point. It provides as follows:
52 Mandatory refusal of application
The Tribunal must refuse to make an award of assistance if—
(a) it is satisfied that—
(i)the act of violence was not reported to the police within a reasonable time; or
(ii)the applicant failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed—
unless the Tribunal considers that special circumstances brought about that result; or
(b)the application is made in collusion with the person who committed or is alleged to have committed the act of violence; or
(c)an earlier application for assistance by the applicant in any capacity arising from the same act of violence has been made, whether or not the earlier application has been determined; or
* * * * *
As can be seen, this section prevents the tribunal from making an award of assistance in the various circumstances specified. Taking s 52(1)(a) as an example, the provision would preclude the tribunal from making an award of assistance to an otherwise eligible applicant if it were satisfied that the act of violence on which the applicant’s eligibility rested was not reported within a reasonable time. As suggested during the hearing, there is an obvious nexus between this exclusionary provision and the requirement in s 50(1)(a) that ‘an act of violence has occurred’. Read together, these provisions mean that an applicant who is a victim of an act of violence will be eligible for assistance provided that the act of violence is not one to which s 52(1)(a) applies.
Section 54 is another provision governing the power to make an award of assistance. It requires the tribunal, in determining whether or not to make an award of assistance or in determining the amount of an award, to have regard to the matters there specified. Unlike s 52, s 54 does not create a statutory prohibition against the making of an award but it does impose on the tribunal a statutory duty to have regard to certain matters which, the legislature contemplated, might result in the tribunal deciding not to make an award at all or, alternatively, deciding to reduce the amount of an award which it would otherwise have made.
It follows, in our view, that there is no order of precedence between the provisions in div 4. As we have said, they are all provisions which identify matters — some qualifying, some disqualifying — which condition the exercise of the power to make an award of assistance. There is no basis, in our view, for the contention that the tribunal may not consider the matters raised by s 54 until it has reached an affirmative state of satisfaction about the matters set out in s 50(1).
On the contrary, in our view, it is well open to the tribunal, in a case where circumstances relevant to s 52 or s 54 arise, to deal with those matters at the threshold. Again taking s 52(1)(a) as the example, if there were some apparently unreasonable delay in the reporting of the act of violence, it must be open to the tribunal to investigate that question first. Should the tribunal’s conclusion be that the delay was unreasonable and that there were no ‘special circumstances’, then there would be no occasion to investigate any other aspect of the application.
The same applies to s 54. If, as in the present case, there are matters squarely raised in the material before VOCAT — or (when the matter comes to the Tribunal) in the decision under review — which bear on s 54, then it must be open to the relevant tribunal to investigate those matters at the threshold. Given that s 54 expressly contemplates that the tribunal may decide not to make an award at all, this would seem to be a perfectly sensible course to take. Nothing in the language of s 54 — or of s 50 — stands in the way of the tribunal proceeding in this manner. On the contrary, to proceed in that way would seem to accord with the tribunal’s obligation under s 32(1) of the Act, to act:
(a) fairly; and
(b) according to the substantial merits of the case; and
(c)with as much expedition as the requirements of this Act and a proper determination of the matter permit.
CZG’s submissions relied heavily on ss 8 and 8A, which are set out above.[25] As can be seen, s 8 lists the types of expenses which can be the subject of an award of assistance, and fixes a maximum of $60,000 for such an award. Section 8A makes provision for an award of ‘special financial assistance’ — in addition to assistance awarded under s 8 — where the tribunal is satisfied of certain additional matters.
[25]See [24] above.
According to the written case:
The concern of this Ground is the proper approach to decision-making under the [Act]. CZG contends that the s 50(1) satisfactions enliven what the tribunal ‘may’ then do. In this way, s 50(1)(c) also has a substantive operation. By the decision maker turning their mind to what the tribunal can do to assist, he or she informs the exercise of discretion by learning about an applicant’s relevant financial needs due to the act of violence. Put another way, consideration of an applicant’s position under s 8 and 8A also bears directly on whether an award should be made and, if so, its composition and amount.
We reject this submission. As we have said, there is nothing in s 54 to suggest that the tribunal must first consider whether — if any award of assistance were to be made — the applicant would be able to identify expenses ‘actually incurred, or reasonably likely to be incurred’ in any of the categories set out in s 8(2). Nor is there any reason to think that an investigation of possible eligibility for ‘special financial assistance’ is a pre-condition to the tribunal addressing the matters under s 54.
Particular reliance was placed on the following statements of McLeish JA in Pham v Victims of Crime Assistance Tribunal (‘Pham’):[26]
It is true, as the Attorney-General submitted, that s 8 establishes categories for which assistance may be granted, including by prescribing criteria for falling within those categories. In doing so, it is aptly described as prescribing conditions of eligibility for assistance. Where its terms are satisfied, VOCAT therefore has power to award assistance under s 50(1) of the Act. However, s 8 does not address itself to the calculation of the amount of assistance in any particular case. Rather, s 8 is jurisdictional in character because, read with the requirement of eligibility for assistance in s 50(1)(c), it defines and circumscribes the power of VOCAT to award assistance to primary victims.
Section 16, in contrast, is expressly concerned with ‘determining’ the amount of assistance to be awarded. It operates by reference to ‘the loss, expense or other matter for which assistance is sought from the Tribunal’. In other words, it presupposes that VOCAT’s jurisdiction to award assistance has been invoked and that the Act has provided for that jurisdiction. The provision establishing jurisdiction is here found in s 8, read with s 50(1)(c). Viewed in that light, s 16 assists in ascertaining the amount of assistance to be awarded, but is subject to the jurisdictional limits fixed by s 8. Consistently with this structure, the parameters in s 8, including the pecuniary limits on recovery, only operate once s 16 has been applied and any reductions required by that provision have been made.[27]
[26][2016] VSCA 102.
[27]Ibid [40]–[41] (Tate and Ferguson JJA agreeing) (citations omitted).
Nothing said by the Court in Pham affects the present analysis. As is apparent from these extracts, the Court was there concerned with a quite different question, namely, the relationship between the caps on financial assistance set by ss 8(1) and 8(2)(c) and the requirement under s 16 that the Tribunal ‘in determining the amount to be awarded to an applicant’ deduct any common law damages or other compensation the applicant has received. The Court’s conclusion was that, relevantly, the cap of $20,000 on financial assistance for loss of earnings only operated once the s 16 deductions had been made.
Moreover, the characterisation of s 50 by McLeish JA accords with the view we have formed. Thus, his Honour said:
It is convenient to commence by considering the power of VOCAT to make an award under the Act. Section 50(1) contains three criteria that must be satisfied to enliven that power.[28]
His Honour’s use of the word ‘jurisdictional’ can be seen to be expressly referable to the tribunal’s power to award assistance. Thus his Honour says that s 8
is jurisdictional in character because, read with the requirement of eligibility for assistance in s 50(1)(c), it defines and circumscribes the power of VOCAT to award assistance to primary victims.[29]
As we said earlier, the use of the adjective ‘jurisdictional’ in this sense is a commonplace — as in the phrases ‘jurisdictional error’ and ‘jurisdictional fact’. Used in this way, it is a reference to the exercise of power by a decision-maker or tribunal whose jurisdiction to make a decision has already been enlivened.
[28]Ibid [35] (emphasis added).
[29]Ibid [40] (emphasis added).
In our view, the consideration of eligibility for assistance in the case of a person claiming to be a ‘primary victim’ — as CZG did — must begin with s 7, which is set out above.[30] Relevantly, CZG had to establish that he was
a person who [was] injured … as a direct result of an act of violence committed against him.
On this critical eligibility issue, there was no dispute, as the Tribunal noted. Nor was there any dispute that he had suffered ‘an extremely serious injury’.
[30]See [22] above.
Satisfying that eligibility requirement opens the gateway to both ss 8 and 8A. Thus, s 8 provides that a primary victim
may be awarded by the Tribunal assistance of up to $60,000 plus any special financial assistance awarded in accordance with section 8A.
On this analysis, s 7 determines the threshold issue of eligibility, as to whether the applicant falls into the class of persons in respect of whom the power to award assistance may be exercised. Sections 8 and 8A are ‘conditions of eligibility’ in the sense that they specify:
·in the case of s 8, the amounts and categories of financial assistance to which an eligible applicant may be entitled; and
·in the case of s 8A(2), the additional eligibility condition — ‘significant adverse effect’ — which must be satisfied by the applicant in order to be entitled to ‘special financial assistance’.
It can now be seen that there was no error in his Honour’s description of the Tribunal as having made an ‘assumption of eligibility’ in CZG’s case. Given that there was no dispute that CZG qualified as a ‘primary victim’, the Tribunal was perfectly entitled to proceed on the basis that he would be entitled — subject to appropriate proof — to financial assistance under s 8 and under s 8A, given that the ‘significant adverse effect’ of the act of violence was indisputable.
There is one further answer to CZG’s submission concerning ‘eligibility’ for the purposes of s 50(1)(c). We have already said that ss 52 and 54 are provisions which, like s 50, govern the Tribunal’s power to make an award of assistance. Another way of characterising those sections would be as provisions dealing with eligibility — or, more accurately, ineligibility — for an award of assistance.
Thus understood, s 52 renders an otherwise eligible applicant ineligible in the circumstances with which that section deals, while s 54 authorises the tribunal to consider whether an otherwise eligible applicant should be viewed as ineligible because of matters of the kind adverted to in the section. On that view, the tribunal could not reach a state of satisfaction for the purposes of s 50(1)(c) — that is, that the applicant was ‘eligible to receive assistance’ — without first considering the possible disqualifying effect of s 52 or s 54, should the material before the tribunal suggest that one or other of those provisions might be applicable.
Grounds 3 and 4: legal unreasonableness
The remaining grounds advance the contention that the Tribunal’s decision to refuse assistance under s 54 of the Act was ‘legally unreasonable’. The arguments advanced to support this contention were directed both at the ultimate decision and at what were said to be specific errors in the decision-making process. CZG relies for this purpose on the statement by the High Court in Li, that ‘the more specific errors in decision-making … may also be seen as encompassed by unreasonableness’.[31]
[31](2013) 249 CLR 332, 365 [72]; [2013] HCA 18.
It follows, as the Full Federal Court said in Minister for Immigration and Border Protection v Eden,[32] there are two contexts in which the concept of legal unreasonableness may be employed:
The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an ‘outcome focused’ conclusion without any specific jurisdictional error being identified.[33]
[32](2016) 240 FCR 158; [2016] FCAFC 28 (‘Eden’).
[33]Ibid 171 [60].
It is important, in our view, that these two contexts be kept quite separate. The principles applicable to complaints of specific jurisdictional error are, of course, quite distinct from the principles which are engaged when the complaint of unreasonableness is directed at the decision itself. It is the latter body of principle which has been the subject of detailed exposition by the High Court, first in Li and more recently in Minister for Immigration and Border Protection vSZVFW.[34]
[34](2018) 264 CLR 541; [2018] HCA 30 (‘SZVFW’).
It follows, in our view, that in a proceeding by way of judicial review (including an appeal on a question of law), complaints of ‘specific errors in decision-making’ should be identified by separate grounds (or questions) and argued accordingly. They should not be advanced, as occurred here, under cover of a contention that the decision arrived at was legally unreasonable. Since, however, complaints of specific error were advanced under this ground, it is necessary for us to deal with them.
As noted earlier, the Tribunal concluded that the seriousness of CZG’s injury, and the impact on him of the act of violence, were
far outweighed by his past, violent, criminal history; the harm he caused by his own offending; his direct contribution to the events leading up to the confrontation in which he was injured; his unlawful and violent threat to kill his former girlfriend on the day; and his conduct in attending the confrontation armed and prepared to engage in violent conflict.[35]
[35]VCAT Reasons [74]; Reasons [24].
Both at first instance and in this Court, CZG contended that ‘profoundly inadequate weight’ was given to the evidence before the Tribunal of CZG’s injury and ‘its enduring impact’. He also contended that the Tribunal gave excessive weight to its conclusions about CZG’s criminal history and his contribution to the incident in which he sustained the injury.
We would respectfully adopt the reasons which his Honour gave for rejecting these contentions, as follows:
In proceedings in the nature of judicial review, issues of weight are usually characterised as matters for the decision-maker which do not give rise to errors of law. In Minister for Aboriginal Affairs v Peko-Wallsend Limited,[36] Mason J stated:
[I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[37]
All of the matters prescribed by ss 54(a), (d) and (f) which were taken into consideration by the Senior Member were matters which she was required to have regard to. The balancing exercise undertaken by the Senior Member and the weight which she attributed to different considerations discloses no error of law.
CZG submits that the Senior Member gave ‘profoundly inadequate weight’ to CZG’s injury and its enduring impacts. The Senior Member’s reasons record her finding that CZG suffered an extremely serious injury which has had a profound impact upon him. I reject CZG’s submission that the Senior Member gave profoundly inadequate weight to CZG’s injury and its enduring impact upon him. The Senior Member gave those matters significant weight.[38]
[36](1986) 162 CLR 24.
[37]Ibid 41.
[38]Reasons [61]–[63].
Next, CZG renewed a submission made to the judge that the Tribunal had failed to take into account a relevant consideration, namely, its finding that he had seen ‘no other alternative’ to attending the meeting where he sustained his injury and that he had not wanted the men he was meeting to come to his grandmother’s house where he was living. (We note that this complaint of specific error should have been made the subject of a separate ground.)
Once again, we would reject this submission for the reasons which his Honour gave:
I reject CZG’s submission that the Senior Member failed to have regard to the finding at paragraph 61. To the contrary, the Senior Member made an express finding at paragraph 61 that CZG did not see any other alternative than to attend the meeting and did not want the men to come to his grandmother’s house where he lived with his family. Nevertheless, notwithstanding this finding, the Senior Member recorded her satisfaction that CZG went to the meeting on 1 February 2014 expecting violent conflict and prepared to engage in it. In effect, CZG submits that the Senior Member did not give sufficient weight to her finding that CZG did not see any alternative other than to attend the meeting and did not want his assailants to come to his grandmother’s house where he lived with his family. The weight to be attributed to these matters was a matter for the Senior Member and does not disclose an error of law.[39]
[39]Ibid [79].
Another complaint of specific error advanced under the unreasonableness ground was that the Tribunal had taken into account an irrelevant consideration. (The argument concerned the Tribunal’s findings, set out in paragraph 15 of these reasons, regarding CZG’s ‘direct involvement in the sequence of events that led to the act of violence’.) The trial judge rejected the argument and, although the written case filed in this Court did not specifically advert to it, counsel for CZG renewed the argument in the course of his oral submissions. As we have said, on an appeal from the Tribunal a complaint of specific error of this kind should be the subject of a separate question of law.
The Tribunal’s conclusion was that CZG’s conduct in these respects was ‘highly relevant’ under s 54(a) and (d) of the Act. CZG accepts that it was relevant to s 54(a) — because it concerned his ‘character, behaviour … or attitude … at any time’ — but maintains that it was not relevant to
any condition or disposition of [his] which directly or indirectly contributed to his … injury.
We respectfully agree with the judge’s reasons for rejecting that contention, as follows:
In any event, I reject CZG’s submission that his direct involvement in the sequence of events that led to the shooting was not a relevant consideration for the purpose of s 54(d). His direct involvement in the sequence of events leading up to the shooting evinced a disposition which directly or indirectly contributed to his injury. His presence at the meeting at which he was shot was not by chance. Rather, it was premeditated and occurred in circumstances where CZG had made threats to kill his former girlfriend and her acquaintance. He attended the meeting armed and ready to engage in violence. His willingness to do so was a ‘disposition’ within the meaning of s 54(d).[40]
[40]Reasons [82].
Next, it was said, neither the Tribunal nor the judge analysed CZG’s past criminal activity by reference to ‘the markedly lower standard that applies to juvenile offending’.[41] Again, this complaint is without substance. As his Honour pointed out, the Tribunal made express reference — twice — in the reasons for decision to the significance of CZG’s youth. Thus, the Senior Member accepted the submission advanced on his behalf that it was:
relevant that the offending occurred before the applicant reached adulthood. He is not in the category of an adult offender who has continued criminal offending through adulthood.[42]
And she said further:
I have taken into account that the findings of guilt in his criminal history related to offences committed before he turned 18. As submitted, they are to be seen in a different light to adult offending.[43]
[41]The submission relied on Webster v The Queen [2016] VSCA 66, [8]–[9].
[42]VCAT Reasons [45].
[43]Ibid [76].
Next it is said that the Tribunal gave no weight to the beneficial objects of the Act, as encapsulated in s 1(2)(a):
To assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime.
This contention may be disposed of shortly. The Tribunal directed itself correctly by setting out in full the objectives of the Act and, further, by setting out the following passage from the decision of Judge Ginnane in Meinderts v Victims of Crime Assistance Tribunal:[44]
The Act does not establish a system of financial assistance for all victims of crime. Each case must be considered on its merits having regard to the objects of the Act and the prescribed considerations. The Act does not prevent persons, even those with an extensive criminal history, seeking financial assistance, when they are the victims of crime.
However the Act does require that consideration be given to an applicant’s character, behaviour, including their criminal activity or attitude. …
[44][2011] VCAT 1831, [31]– [32] (‘Meinderts’).
A related contention concerned the Tribunal’s endorsement of the view expressed by VOCAT that
to make an award of assistance to the applicant, whether reduced or otherwise, under either s 8 or s 8A of the Act would be contrary to the intention and purposes of the Act and would not accord with community expectations.[45]
According to CZG’s submission as put to the judge, this statement exposed
a profound misconception of the intention and purposes of the [Act] and the statutory sources of ‘community expectations’.[46]
[45]VCAT Reasons [75].
[46]Reasons [85].
We reject this submission. As counsel for the Attorney-General correctly pointed out, the objectives of the Act explicitly invoke considerations of community attitudes and values. Thus, the objective set out in s 1(2)(b) is as follows:
To pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime.
Just as importantly, the enactment of s 54, in terms authorising the tribunal to make no award or a reduced award, conveys in clear terms the legislative intention that it is for the decision-maker to assess whether the presence of one or more of the matters there listed should be viewed as disqualifying an applicant for assistance, either in whole or part, from an award to which they would otherwise be entitled. It follows, in our view, that it is consistent with the objective and the structure of the Act for the tribunal to ask itself — as Judge Ginnane did in Meinderts — whether the applicant for assistance
is an appropriate recipient of a symbolic expression by the State of the community’s sympathy.[47]
[47]Meinderts [2011] VCAT 1831, [32].
Finally, we turn to CZG’s submission that the decision itself was legally unreasonable. As noted earlier, for this submission to succeed it would be necessary for CZG to show that the decision lacked ‘an evident and intelligible justification’[48] or that it fell outside the ‘area of decisional freedom’[49] which the Act conferred on the decision-maker. It will be apparent from what we have already set out from the Tribunal’s reasons that the justification for the decision was both evident and intelligible and that, moreover, the decision to refuse the application fell well within the scope of the Tribunal’s discretionary judgment.
[48]Li (2013) 249 CLR 332, 367 [76]; [2013] HCA 18.
[49]Ibid 350–51 [28] and 363 [66].
We conclude our consideration of the unreasonableness ground by emphasising that an appeal on a question of law — as the present appeal was — is not an occasion for a review of the merits of the decision under challenge. While the unreasonableness ground necessarily invites — and requires — attention to all of the facts and circumstances as they presented themselves to the decision-maker, it must be constantly borne in mind that the test of unreasonableness is ‘necessarily stringent’.[50]
[50]SZVFW (2018) 264 CLR 541, 551 [11]; [2018] HCA 30.
The task committed to VOCAT — and on review to the Tribunal — is an evaluative one, requiring the weighing and balancing of considerations which allow of no precise quantification. As is characteristic of discretionary decisions, these are matters about which reasonable minds can differ. That is the ‘area of decisional freedom’, within which a decision-maker has a genuinely free discretion. Any decision or outcome within that area is within the bounds of legal reasonableness.[51] The court of judicial review will be understandably slow to conclude that a decision arrived at — as the present decision was — by applying the correct legal principles and involving a careful consideration of the evidence was nevertheless outside the range of decisions reasonably open.
[51]Li (2013) 249 CLR 332, 363 [66]; [2013] HCA 18; Eden (2016) 240 FCR 158, 171 [62]; [2016] FCAFC 28.
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