MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT
AND
SZVFW & ORS RESPONDENTS
Minister for Immigration and Border Protection v SZVFW
[2018] HCA 30
8 August 2018
S244/2017
ORDER
1.Appeal allowed.
2.The order made in paragraph 1 of the order of the Full Court of the Federal Court of Australia dated 2 March 2017 be set aside and, in its place, order that:
(a)the appeal be allowed; and
(b)the order of the Federal Circuit Court of Australia dated 19 August 2016 be set aside and, in its place, order that the application be dismissed.
3.The appellant pay the first and second respondents' costs of this appeal.
On appeal from the Federal Court of Australia
Representation
N J Williams SC with P D Herzfeld and M T Sherman for the appellant (instructed by Sparke Helmore Lawyers)
K A Stern SC with L Andelman for the first and second respondents (instructed by Kinslor Prince Lawyers)
Submitting appearance for the third respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Border Protection v SZVFW
Migration – Refugee Review Tribunal – Review of decisions – Where first and second respondents sought review by Refugee Review Tribunal ("Tribunal") of decision of delegate of appellant to refuse applications for protection visas – Where respondents failed to respond to invitations from Tribunal to appear or provide submissions – Where s 426A(1) of Migration Act 1958 (Cth) empowered Tribunal to proceed to make decision on review without taking further action to allow or enable respondents to appear – Where Tribunal made decision to proceed under s 426A(1) – Whether Tribunal's decision to proceed in absence of respondents was legally unreasonable.
Appeal – Rehearing – Where primary judge held decision of Tribunal was legally unreasonable – Where Full Court of Federal Court dismissed appeal from primary judge's decision, holding that appellant was required to demonstrate error in reasoning of primary judge akin to that required in appeals from discretionary judgments – Whether principles stated in House v The King (1936) 55 CLR 499 apply to appeal from decision on judicial review that administrative decision is legally unreasonable.
Words and phrases – "appeal by way of rehearing", "appealable error", "discretionary", "discretionary decision", "discretionary power", "evaluative approach", "evaluative judgment", "evaluative process", "legally unreasonable", "standard of appellate review", "unreasonable".
Migration Act1958 (Cth), ss 425, 425A, 426A, 441A, 441C, 476.
KIEFEL CJ. The facts of this case and the statutory provisions relevant to it are set out in the reasons of Nettle and Gordon JJ. I agree with their Honours that this appeal from the Full Court of the Federal Court of Australia should be allowed and with the other orders that their Honours propose.
The first and second respondents' ("the respondents") applications for Protection (Class XA) visas were rejected by the Minister's delegate. The respondents sought…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Case
[2018] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Minister for Immigration and Border Protection against a decision of the Full Court of the Federal Court. The dispute concerned the Refugee Review Tribunal's decision to proceed with a review of protection visa applications without the applicants' participation, after the applicants failed to respond to invitations to appear or provide submissions. The primary judge had found the Tribunal's decision to proceed to be legally unreasonable, a finding upheld by the Full Court.
The central legal issues before the High Court were whether the Tribunal's decision to proceed with the review in the absence of the respondents was legally unreasonable, and whether the principles articulated in *House v The King* apply to an appeal from a decision on judicial review that an administrative decision is legally unreasonable.
The High Court allowed the appeal, holding that the standard of appellate review for a finding of legal unreasonableness in administrative decision-making is not akin to that required for appeals from discretionary judgments. The Court affirmed that legal unreasonableness, as explained in *Attorney-General (NSW) v Quin*, involves a decision so unreasonable that no reasonable repository of the power could have taken it. The Court found that the Tribunal's decision to proceed under section 426A(1) of the *Migration Act 1958* (Cth) was not legally unreasonable.
Consequently, the High Court set aside the order of the Full Court and, in its place, ordered that the appeal to the Federal Court be allowed, and the order of the Federal Circuit Court be set aside, with the original application being dismissed. The appellant was ordered to pay the respondents' costs of the High Court appeal.
Orders
Orders of the court
1. Appeal allowed.
2. The order made in paragraph 1 of the order of the Full Court of the Federal Court of Australia dated 2 March 2017 be set aside and, in its place, order that:
(a) the appeal be allowed; and
(b) the order of the Federal Circuit Court of Australia dated 19 August 2016 be set aside and, in its place, order that the application be dismissed.
3. The appellant pay the first and second respondents' costs of this appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
GAGELER J
NETTLE AND GORDON JJ
That understanding has in the past been acknowledged and applied to guide appellate review in the Full Court of the Federal Court[73]. There is no reason to depart from it now. [73]Eg Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 436 [25].The nature of a legally unreasonable decision Having expounded the general and, in its application to the determination of a claim for relief under or by reference to s 75(v) of the Constitution, exhaustive proposition that "[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power", Brennan J in Attorney-General (NSW) v Quin[74] immediately explained how "'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation[75])" was consistent with that proposition: "[a]cting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action"[76]. His Honour called in aid the exposition of Professor Wade to the effect that, "[w]ithin the bounds of legal reasonableness", the repository has "genuinely free discretion"; "[i]f it passes those bounds, [the repository] acts ultra vires"[77].[74](1990) 170 CLR 1 at 35-36; [1990] HCA 21.[75][1948] 1 KB 223.[76](1990) 170 CLR 1 at 36.[77](1990) 170 CLR 1 at 36, quoting Wade, Administrative Law, 6th ed (1988) at 407. Expression of the standard of legal reasonableness in terms of the minimum to be expected of any "reasonable repository of the power" in the circumstances of the impugned decision or action has the benefit of emphasising both the "extremely confined"[78] scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words. [78](1990) 170 CLR 1 at 36. Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds[79]) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute[80]). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power.[79]Eg George v Rockett (1990) 170 CLR 104 at 116; [1990] HCA 26; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 429 [10]; [2006] HCA 45; Prior v Mole (2017) 91 ALJR 441 at 445 [4], 449-450 [24]-[27], 457 [73], 460-461 [97]-[100]; 343 ALR 1 at 5, 10-11, 21, 26; [2017] HCA 10.[80]Eg Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-506; [1947] HCA 21; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 523 [59]; [2009] HCA 4; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 620 [360]; [2015] HCA 1.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
GAGELER J,
NETTLE AND GORDON JJ