FEATURE ARTICLE -
Advocacy, Issue 92: Jun 2023
What is “Legal Unreasonableness” when it’s at Home?
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Thursday 8th June, 2023
What is “Legal Unreasonableness” when it’s at Home?
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 per Wigney J
Relevant principles – Legal unreasonableness
- The relevant principles in relation to legal unreasonableness have been given detailed consideration and analysis in many cases in recent times. (citation omitted) It is unnecessary to add significantly to what has already been written on the topic. It is sufficient to provide a brief summary of the general principles that emerge from those cases. The general principles are now so well accepted in the authorities that it is unnecessary to provide specific case citations. Following are the main points.
- First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.
- Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
- Third, 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.
- Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that, within the boundaries of power, there is an area of “decisional freedom” within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.
- Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope, and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact-dependant and to require careful attention to the evidence.
- Sixth, where reasons for the decision are available, the reasons are likely to provide the main focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
- Seventh, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised in past cases include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”: Muggeridge at [65]. It must be emphasised, however, that the task is not an a priori definitional or “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
- Eighth, defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned. Muggeridge was such a case. That provides an appropriate segue to a consideration of the principles relating to the finding of jurisdictional error on the basis of illogicality or irrationality.
Relevant principles – Illogicality and irrationality
- There is a degree of overlap between the principles of legal unreasonableness and the principles of illogicality and irrationality in administrative decision-making. That is because, as just noted, an exercise of discretion which is based on illogical or irrational reasoning or decision-making may be considered to be legally unreasonable. There is, however, another species of cases where illogical or irrational findings of fact may give rise to a finding that an administrative decision maker has failed to lawfully exercise their jurisdiction. That is where the illogical or irrational reasoning or finding relates to a jurisdictional fact: a necessary pre-condition to the exercise of power.
- As Derrington J convincingly explained in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681, the principles relating to judicial review for jurisdictional error, including legal unreasonableness arising from illogical or irrational reasoning or fact finding, are separate and distinct from the principles relating to judicial review in respect of a “jurisdictional fact error”; that is, review of an administrative decision on the basis that the decision maker’s finding of the relevant jurisdictional fact was illogical, irrational, or not based on probative evidence. The significance of that distinction was doubted, to an extent, by the Full Court in BFH16 at [29]-[34], though it was ultimately unnecessary for the Full Court to decide that issue. Nor is it necessary or desirable for that issue to be addressed or determined in this case. It is not desirable because it was not an issue which was ventilated at first instance or addressed at all in the parties’ submissions on appeal. The matter was argued essentially on the basis that the Minister committed a jurisdictional error because, in making the findings or determinations that provided the basis for his decision, he acted “irrationally, illogically and unreasonably”.
- That said, some of the impugned findings and reasoning of the Minister concerned a jurisdictional fact, albeit a fairly obscure and subjective one. In simple terms, that jurisdictional fact was that the Minister was not satisfied that the appellant passed the character test, specifically the criterion in subs 501(6)(d)(v) of the Act. Expressed in terms of the relevant statutory provisions (including the unfortunate double negative), the Minister’s discretion to refuse the appellant’s visa application under subs 501(1) only arose if the Minister was not satisfied that the appellant was not a person in respect of who it could be said that, in the event that he was allowed to remain in Australia, there is a risk that he would represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment in any other way.
- As obscure as that jurisdictional fact may be, it is clear that if the Minister’s state of non-satisfaction was based on illogical or irrational reasoning or findings of fact, including findings not supported by logically probative evidence, he acted without jurisdiction in refusing to grant the visa to the appellant: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [147]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [122].
- That is not, however, the only basis upon which the Minister may be found to have erred in a jurisdictional sense in cancelling the appellant’s visa. If, having found that he was not satisfied that the appellant passed the character test, the Minister exercised his discretion to refuse to grant the visa on the basis of factual findings that were illogical or irrational, or not supported by probative evidence, that too would amount to a jurisdictional error: Muggeridge at [35] and [58]. Illogical or irrational findings made by a decision maker “on the way” to a final conclusion may establish jurisdictional error: SZMDS at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54].
- It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. 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”: SZMDS at [131].
- It should equally be emphasised that, for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]. The “critical question” whether an administrative decision is irrational, illogical, and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]–[15].
- It should finally be observed, in this context, that in considering whether an administrative decision maker’s decision or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
