JS Bundy Pty Ltd v Minister for Immigration and Anor (No.2)

[2020] FCCA 242

FEDERAL CIRCUIT COURT OF AUSTRALIA

JS BUNDY PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 242

Catchwords:
MIGRATION – Application for nomination of position pursuant to regulation 5.19(4)(d) of the Migration Regulations 1994 (Cth) – finding by Tribunal that applicant company lacked financial capacity to employ the nominee for at least a two (2) year period – careful and detailed analysis by Tribunal of financial documentation relating to the business affairs of the applicant – no jurisdictional error on the part of the Tribunal – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), s.359.

Migration Regulations 1994 (Cth) r.5.19.

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

Tsvetnenko v United States [2019] FCAFC 74.

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: JS BUNDY PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 730 of 2019

Judgment of: Judge Egan

Hearing date: 4 February 2020

Date of Last Submission: 4 February 2020

Delivered at: Brisbane

Delivered on: 11 February 2020

REPRESENTATION

Applicant: Mr. G. Kim given leave to appear as Director for Applicant company.

Solicitors for the Respondents: Ms K. Reid of Clayton Utz

ORDERS

1. The application for review filed on 13 August 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 730 of 2019

JS BUNDY PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6 June 2016 the applicant applied for Employer Nomination for a Permanent Appointment under the Regional Sponsored Migration Scheme – Subclass 187 (Direct Entry) Visa. The applicant listed the relevant industry in respect of which the visa was applied for as being “accommodation and food services”. The applicant operated a number of backpacker accommodation facilities in Bundaberg, Queensland. The relevant position the subject of the nomination was a backpacker manager.

2. On 18 May 2017 a delegate to the Minister refused the application for the Nomination. The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of that decision.

3. The applicant provided extensive submissions to the Tribunal before the hearing on 29 May 2019. The applicant further provided post-hearing submissions.

4. On 26 June 2019 the Tribunal requested further information from the applicant relating to the applicant’s financial affairs. That information was provided to the Tribunal on 4 July 2019.

5. On 12 July 2019, the Tribunal affirmed the decision of the delegate to refuse the Nomination.

6. The Tribunal found that the applicant’s business was not viable and faced a loss of $13,746.00 for the 2019 financial year. The Tribunal was not satisfied, in the circumstances, that the proposed nominator had the financial capacity to be able to pay the full-time salary for the nominated position for at least two years as countenanced by regulation 5.19(4)(d) of the Migration Regulations 1994 (Cth) (‘the Regulations’), which regulation provided as follows:

   “5.19 Approval of nominated positions (employer nominations)

   (1)  A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2)  The application must:

   (a)  be made in accordance with approved form 1395 (Internet); and

   (aa)  include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

   (b)  be accompanied by the fee mentioned in regulation 5.37.

   Temporary Residence Transition nomination

   (3)  The Minister must, in writing, approve a nomination if:

   (a)  the application for approval:

   (i)  is made in accordance with subregulation (2); and

   (ii)  identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visagranted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)  identifies an occupation, in relation to the position, that:

   (A)  is listed in ANZSCO; and

   (B)  has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and

   b)  the nominator:

   (i)  is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

   (ii)  is actively and lawfully operating a business in Australia; and

   (iii)  did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

   (c)  either:

   (i)  both of the following apply:

   (A)  in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:

   (I)   held one or more Subclass 457 visas for a total period of at least 2 years; and

   (II)   been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);

   (B)  the employment in the position has been full‑time, and undertaken in Australia; or

   (ii)  all of the following apply:

   (A)  the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);

   (B)  the nominator nominated the occupation;

   (C)  the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)  for a person to whom subparagraph (c)(i) applies:

   (i)  the person will be employed on a full‑time basis in the position for at least 2 years; and

   (ii)  the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)  the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)  are provided; or

   (ii)  would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)  either:

   (i)  the nominator:

   (A)  fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

   (B)  complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

   (ii)  it is reasonable to disregard subparagraph (i); and

   Note: Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

   (g)  either:

   (i)  there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (h)  the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

   Direct Entry nomination

   (4)  The Minister must, in writing, approve a nomination if:

   (a)  the application for approval:

   (i)  is made in accordance with subregulation (2); and

   (ii)  identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)  the nominator:

   (i)  is actively and lawfully operating a business in Australia; and

   (ii)  directly operates the business; and

   (c)  for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)  both of the following apply:

   (i)  the employee will be employed on a full‑time basis in the position for at least 2 years;

   (ii)  the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and”

7. The applicant filed an application for review of the Tribunal’s decision on 13 August 2019. The grounds for review were as follows:

   “Grounds of Application

   Ground 1 – Unreasonableness

   1. The Tribunal’s decision was unreasonable where the decision was based on a finding that was illogical, unsupported by probative material and could not be drawn from the evidence before it.

   Particulars

   1.1 The Tribunal did not accept the statements made by the accountant or the Business Activity Statements (BAS) provided by the Applicant.

   1.2 This left the Tribunal with insufficient and inaccurate information, namely bank statements and its own “annualised” profit and loss statement, to determine whether the Applicant was in a financial position which could employ the nominee for a period of two years.

   1.3 The Tribunal’s annualisation of the Applicant’s profit and loss did not yield accurate figures which could demonstrate the Applicant’s true financial position.

   1.4 This finding adversely impacted upon the Applicant’s ability to demonstrate whether it could satisfy the requirements prescribed under regulation r 5.19 of the Migration Regulations 1994 (Cth) (“Regulations”).

   1.5 It was unreasonable for the Tribunal to reject the statements and evidence provided by the Applicant and instead replace with its own assumptions to reach a conclusion on the Applicant’s financial position.

   Ground 2 – Failure to exercise jurisdiction

   2. The Tribunal failed to exercise its jurisdiction where it erred in determining a jurisdictional fact.

   Particulars

   2.1 The Regulation imposes upon the delegate and the Tribunal an obligation to grant or refuse to grant a visa upon determining whether the Applicant could satisfy the prescribed criteria under the Regulations.

   2.2 The criteria prescribed under the regulation, particularly r 5.19(4)(d)(i) is a ‘jurisdictional fact’ upon which the exercise of authority relies on.

   2.3 The Tribunal could not have reached a lawful decision without requesting further information in order to reach a correct and preferable decision.

   2.4 Hence, it cannot be said that the Tribunal made its decision in accordance with the law where it did not have sufficient and accurate information.

   Ground 3 – Failure to take into account a relevant consideration

   Particulars

   3.1 The Tribunal had concerns regarding the difference between income reported in the business activity statements and the income shown in the bank statements.

   3.2 The Applicant provided various statements from its accountant in relation to the Applicant’s financial position, including an explanation as to why there is a discrepancy between the BAS an the bank statements

   3.3 Notwithstanding, the Tribunal ‘did not accept the explanation offered by the accountant as it was not consistent with the actual details in the bank statements’. It concluded that the bank statements were the ‘more accurate record of income’

   3.4 This demonstrates the Tribunal’s failure to carefully take into account the accountant’s explanation, as it did not consider whether the method of reporting the BAS was accrual or cash based reporting as per the accountant’s explanation.

   3.5 Further, the Tribunal does not consider whether the timing difference could be the reason as to why there is a discrepancy between the BAS and the bank statements.”

8. In its deliberations, the Tribunal closely considered a large volume of material as set out in [9] of its reasons. At [11] – [37] inclusive of its reasons, the Tribunal recorded its detailed and careful consideration of all relevant aspects of the applicant’s earnings for the 2016 – 2019 financial years inclusive. It had regard to fluctuations in the applicant’s profitability in such financial years in the context of submissions made to it by Park & Co Lawyers, as well as the nominator at the hearing. The Tribunal noted discrepancies between BAS statement records and income received into bank accounts for the 2018 and 2019 financial years, [1] as well as explanations given in relation to such discrepancies.

   [1]        [22] – [23] of Tribunal’s reasons – Court Book (CB) p. 658.

9. At [35] of its reasons, the Tribunal noted that when the nominator was asked about the loss for the financial year 2019, “the nominator stated that he had made up the figure of 80% occupancy and the real figure was 90%. He also said he was focussed on the next two to three to ten years of the business and working with the brand name to make the business stronger.” As to that, the Tribunal found:

   “The Tribunal could not see that a business proprietor would make up a lesser figure of occupancy when he could simply give the better occupancy figure. This statement was not consistent with the bank statements as discussed above. The Tribunal does not accept occupancy of 90% but rather accepts occupancy of 73% as evidenced by the nominators own bank statements.”

10. At [38] of its reasons, the Tribunal noted that the nominator had not renewed a lease for premises situated at 11A Hinkler Drive, Bundaberg. The Tribunal noted that the lack of renewal was inconsistent with evidence to the effect that the nominator was planning for the next two to three to ten years of the business, stating that the renewal of  a lease imminently due to expire would have been front of mind to anyone wishing to expand a business.

11. At [39] of its reasons, the Tribunal noted that the other two properties used by the nominator for the conduct of its business were occupied on a periodic tenancy basis.

12. At [41] – [43] inclusive of its reasons, the Tribunal referred to submissions from the nominator’s accountants as well as from its lawyers. After having analysed those submissions, the Tribunal concluded that the applicant could not realistically increase weekly occupation fees in respect of its business accommodation premises such that there might realistically be an improvement in the applicant’s financial position. The tribunal engaged with the issues before it.

Ground 1

1. As to Ground 1 of the applicant’s grounds for review, it is asserted that the Tribunal’s decision was unreasonable and based on a finding that was illogical, unsupported by probative material, and “could not be drawn from the evidence before it”. The claim is based upon the assertion that the Tribunal did not accept the statements made by the accountant or, presumably, the accuracy of business activity statements (BAS) provided by the applicant.

2. What constitutes unreasonableness has been characterised in a number of different ways. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ explained at [131] that:

   “[131] … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

3. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:

   “[10] In the joint judgment in Minister for Immigration and Citizenship v Li 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, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. 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, 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. 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”

4. In Tsvetnenko v United States [2019] FCAFC 74, Besanko, Banks-Smith and Colvin JJ at [84] – [85] said:

   “[84] … unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave.  Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

   [85] The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision.  Erroneous or illogical reasoning at a particular point in the decision‑making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.”

5. The applicant seeks to challenge a factual finding made by the Tribunal as to the financial capacity of the applicant to sustain the employment of the nominee over a two (2) year period. The Tribunal made such finding after carefully analysing all of the financial documentation before it.

6. The Tribunal did not err in its consideration of the financial documentation before it. It acted reasonably and in a considered manner. There is no merit to Ground 1 of the application for review.

Ground 2

1. As to Ground 2 of the applicant’s grounds for review, it is asserted that the Tribunal failed to exercise its jurisdiction to request further information “in order to reach a correct and preferable decision.”

2. By s. 359 of the Act, the Tribunal is given wide power to get such information as it considers relevant. Section 359 provided as follows:

   “Sect. 359 Tribunal may seek information

   (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a) except where paragraph (b) applies – by one of the methods specified in section 379A; or

   (b) if the invitation is given to a person in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

   (4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

1. As set out in paragraph 4 hereof, the Tribunal sought further information from the applicant in relation to financial aspects of the applicant’s business operations. [2] It did so after having received extensive material from the applicant and relevant submissions both from the applicant’s accountants and the applicant’s lawyer. The Tribunal had clearly undertaken a consideration as to whether it ought to seek further information and it acted appropriately in doing so.

   [2]        Letter from Tribunal to applicant dated 26 June 2019 – CB p. 558.

2. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

3. There is no merit to Ground 2 of the application for review.

Ground 3

1. As to Ground 3 of the applicant’s grounds for review, it is asserted that the Tribunal committed jurisdictional error by failing to carefully take into account relevant considerations. Particulars of such claim amount to the applicant’s disagreement with factual findings made by the Tribunal after the Tribunal’s examination of the financial documentation before it relating to the applicant’s business activities.

2. On a plain reading of the reasons of the Tribunal, the Tribunal carefully analysed that material as well as the submissions made on behalf of the applicant. It has long been held that a Tribunal does not have to make a finding on each and every question of fact before it. As was said by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [8]:

   “[8] To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate’s decision).”

3. A failure to consider a relevant matter will only constitute jurisdictional error if the matter is a mandatory consideration for the decision-maker on a proper construction of a statute. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 42, Mason J considered what constituted a failure to take into account a relevant consideration and said as follows:

   “(1) Failure To Take Into Account a Relevant Consideration

   The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

   (a) The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar (29); CREEDNZ Inc. v. Governor-General (30); Ashby v. Minister of Immigration (31). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (32), that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

   (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Ply. Ltd. (33), adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (34), and Water Conservation and Irrigation Commission (N.s. W) v. Browning (35). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

   (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal (36); Hanks v. Minister of Housing and Local Government (37); Reg. v_ Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (38). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London (39); Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (40).

   (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (41).

   It follows that, in 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: Sean Investments Pty. Ltd. v. MacKellar (42); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44); Pickwell v. Camden London Borough Council (45). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation (46), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss. 5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms. The test has been embraced in both Australia and England: Parramatta City Council v. Pestell (47); Bread Manufacturers of NS. W v. Evans (48); Re Moore; Ex parte Co-operative Bulk Handling Ltd. (49); Hall & Co. Ltd. v. Shoreham-By-Sea Urban District Council (50); Reg. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd. (51); Newbury District Council v. Secretary of State for the Environment (52). However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied: cf., e.g., Wednesbury Corporation (53), and Parramatta City Council (54), with the conclusions reached in South Oifordshire District Council v. Secretary of State for the Environment (55); Shoreham-By-Sea Urban District Council (56); and Minister of Housing and Local Government v. Hartnell (57). But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v. Lovell (58); Gronow v. Gronow (59); Mallet v. Mallet (60). So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

   (e) The principles stated above apply to an administrative decision made by a Minister of the Crown: Murphyores Incorporated Pry. Ltd. v. The Commonwealth (61); Re Hunt; Ex parte Sean Investments Pry. Ltd. (62); Padfield v. Minister of Agriculture, Fisherie and Food (63); Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (64). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be

   relevant to the exercise of a ministerial discretion.

4. The Tribunal did relevantly consider the documentation before it and analysed such material before arriving at a considered and reasoned decision.

5. The applicant is seeking that this Court ought to carry out a merits review of the decision of the Tribunal. That is something which this Court cannot do.

6. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

7. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

1. No jurisdictional error has been established on the part of the Tribunal. The application for review is dismissed.

2. The Court will hear the parties as to costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 11 February 2020