BY GRANT HOOPER
Five years after the decision in Minister for Immigration and Citizenship v Li (2003) (Li) the High Court in Minister for Immigration and Border Protection v SZVFW & Ors (2018) (SZVFW) has revisited the controversial and ill-defined judicial review ground of unreasonableness.
SZVFW will provide some comfort to executive decision makers, as it made clear that a finding by a court that they acted unreasonably should not ‘be lightly reached’ ( Edelman J). Unfortunately, although somewhat inevitably, there continues to be little practical guidance as to what will actually make a decision unreasonable. More generally, SZVFW is important as it provides a very clear restatement of a court’s role when exercising the original jurisdiction to review an executive decision under s 75(v) of the Constitution at first instance and then on appeal.
Unreasonableness as a Ground of Review
Prior to Li, challenges to executive decisions brought on the ground of unreasonableness were hardly ever successful. The reason was that the test for unreasonableness was at that time based on the English Wednesbury standard. That is, an executive decision would only be set aside if the reviewing court concluded that it was so unreasonable that no reasonable decision-maker could have made it. This was particularly difficult to establish. It might have been described as the ‘lunatic standard’, in that only a lunatic could fail to comply with it. 
In Li the High Court held that unreasonableness is not tied to the Wednesbury test, nor does it only apply to decisions that are completely irrational. It catches decisions which are not vitiated by any other obvious legal error, but nevertheless lack an evident and intelligible justification. That is, the Court confirmed that the unreasonableness test can be outcome focused. Just how evident and intelligible the conclusion must be depends upon the particular statute under which the decision was made (Hayne, Kiefel, Bell JJ, ). While Gageler J warned that this new test was still as stringent as the Wednesbury test , the judgment of Hayne, Kiefel and Bell J suggested otherwise. This seemed to be borne out by the fact that after Li, it become more common for challenges on the basis of unreasonableness to succeed. The decisions of the Federal Circuit Court and, on appeal, Full Federal Court in SZVFW were examples of this: in both instances, the Court found that the decision in question was legally unreasonable. However, this was controversial, and ultimately overturned by the High Court.
The High Court’s Decision in SZVFW
SZVFW and his wife (the applicants) applied for protection visas under the Migration Act 1958 (Cth). Their applications were refused by a delegate of the Minister for Immigration. The applicants then asked the Refugee Review Tribunal (RRT) to review the delegate’s decision. The RRT sent a letter to the applicants’ nominated address inviting them to a hearing. The applicants’ did not respond to the invitation or attend the hearing. In such circumstances s 426A of the Migration Act specifically provided that the RRT ‘may’ make a decision on the application ‘without taking any further action to allow or enable the applicant to appear before it’. In reliance on this section, the RRT did not take any further steps to contact the applicants, and instead made a decision adverse to them, noting that they had also failed to attend a meeting with the Department of Immigration.
The applicants sought judicial review of the RRT’s decision in the Federal Circuit Court (Circuit Court), which agreed that the RRT had acted unreasonably. It reasoned that the RRT could not have been satisfied that the letter inviting the applicants to the hearing was actually received (even where the Migration Act deemed it to have been received), that the attendance at the hearing was important for the applicants (which it was) and that further steps to contact the applicants (such as making a phone call ) could have been easily taken. The reasoning of the Circuit Court was understandable if it was making a decision under s 426A itself. However, to find that these facts meant the RRT acted unreasonably was to set a very low bar for the unreasonableness test. As Kiefel CJ subsequently observed in the High Court, this reasoning would apply to almost all RRT matters such that the RRT could rarely, if ever, utilize s 426A (SZVFW ).
The government conceded that a decision under s 426A must be made reasonably but did not accept that the RRT had in fact acted unreasonably in this case. It accordingly appealed to the Full Federal Court. The Full Federal Court, while setting out the general principles that underlie a finding of unreasonableness , did not itself consider whether the RRT acted unreasonably . Rather, it saw its role on appeal as examining whether there were any errors in the findings of the Circuit Court leading to the ultimate conclusion of unreasonableness. As it found no such errors, it was not willing to overturn the Circuit Court’s decision on unreasonableness as it saw it as an ‘evaluative judgement’, that is a conclusion reached by weighing individual facts and circumstances . It was in effect applying an unreasonableness test with a very high bar to the Circuit Court’s decision.
The government appealed again, to the High Court. On that appeal the High Court accepted that the RRT had not acted unreasonably, and decided that the approach of both lower courts was wrong.
Back to Basics: The Role of the Court when Conducting Judicial Review
The High Court’s decision was unanimous, though four separate judgments were delivered.
Each in one way or another emphasized the proposition that Parliament had, by s 426A, allocated the discretionary power to make a decision in the absence of the applicants to the executive decision maker, and not to a judge. This basic but important proposition then meant that, within the express or implied limits set by Parliament, the executive decision maker was the one authorized to decide the most appropriate way to proceed (See in particular Kiefel CJ , Gageler J , Nettle & Gordon JJ  and Edelman J ). In this regard Gageler J returned to the iconic statement of Brennan J in Attorney-General v Quinn that:
The duty and jurisdiction of the court to review administrative [executive] action do not go beyond the declaration and enforcing of the law which determined the limits and governs the exercise of the repository’s power (at -).
In other words, the High Court was reminding the lower courts that regardless of the ground of review being considered, intervention is only permissible if the decision maker acted outside the boundaries or limits of the power established by Parliament.
The Effect of Going back to Basics on the Unreasonableness Test
For the unreasonableness test to remain consistent with this basic understanding of the roles that an executive decision maker and court play in our constitutional setting, it must not in normal circumstances prevent a decision maker from choosing between a range of possible actions. This in turn means that a court cannot simply substitute its own view of what is a reasonable course of action or intervene because it strongly disagrees with the decision maker as the conclusion of the Circuit Court suggested it had done (See: Kiefel CJ , -, Gageler J , Nettle & Gordon JJ [118-122], Edelman J ).
Therefore, unreasonableness is best viewed as a safety net that sets the minimum standard expected of a decision maker (Gageler J 52]). This means that while the relevant statute will determine the exact content of the unreasonableness test, in the normal course of events it seems unlikely that the standard will change significantly. This is because Parliament rarely addresses the standard of unreasonableness expressly and in the absence of it doing so it is difficult to imply that the standard should be reduced. It is not only difficult because Parliament has chosen to give a discretion to the executive decision maker but also because modern statutes normally have competing if not conflicting objectives. This was illustrated in SZVFW. The Circuit Court reasoning suggested that the importance of the decision to the applicants warranted a low bar being set for establishing unreasonableness. This was supported by the exhortation in s 420 of the Migration Act to act fairly and justly. However, it did not account for the further exhortation in s 420 to act economically, informally and quickly which suggested a higher bar.
When all is said and done it seems likely that the unreasonableness standard that will most commonly apply is that in SZFVW. This is a test that ‘is necessarily stringent’ (Kiefel ), is of an ‘extremely confined scope’ (Gageler J ) and will not be ‘lightly reached’ (Edelman J ). Nettle and Gordon JJ appeared more reserved but even they observed that:
It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise.
The Effect of Going back to Basics on an Appellate Court
Viewing unreasonableness as a minimum standard or as setting a legal boundary means that an executive decision maker either does or does not validly exercise the discretion given to them by Parliament – that is they either act legally or they do not. Whether they act legally or not is then by its very nature a question of law (Edelman J ). In Australia this means that there is only one right or wrong answer (Gageler J [55-56], Edelman J ). If there is only one correct answer then the Full Federal Court cannot, as it did, defer to the views of the Circuit Court. An appellate court must decide for itself whether the decision maker acted unreasonably (Kiefel J , Gageler J , Nettle & Gordon , Edelman J ).
An Observation on Procedural Fairness/Natural Justice
While the real concern of the Circuit Court was clearly that the RRT had not followed fair procedures, SZVFW was not a procedural fairness case. This was because Parliament had codified the procedure to be followed and made it clear that in doing so it intended to exclude procedural fairness (Migration Act s 422B).
I have previously argued that the evolution of the unreasonableness test in Li reflected a judicial trend aimed at providing some protection against arbitrary decision making in the face of Parliamentary attempts to exclude procedural fairness (Hooper 2016, 36). SZVFW does not reverse this trend but it does illustrate that there are very real limits on what protection can be offered by the unreasonableness grounds. Given Parliament’s tendency in the Migration arena to codify in greater and greater detail the procedures that must be followed, a phenomenon that has been referred to as ‘super codification‘, the protection that courts can offer may decrease further — although it seems it cannot be reduced to ‘nothingness’ (Plaintiff S157; Graham).
The High Court’s decision is a clear warning to the lower court’s that the unreasonableness test is not an easy one to satisfy; it is certainly not satisfied because a different conclusion could have been reached on the facts. However, this does not mean that there will be a return to the ‘lunatic’ standard that seemed to apply before Li. Rather, there will need to be more compelling circumstances than existed in SZVFW. To use other s 426A cases as an example, such circumstances may still arise when it is known that an applicant is unable to attend the hearing (Malecaj) or the applicant has played a very active role in pursuing a visa and their non-appearance is entirely unexpected (Kaur).
On a last note, amendments to s 426A were made in 2015 to allow an applicant to apply to have their hearing reinstated if the RRT (now AAT) proceeded in their absence. This amendment may go some way to ameliorate the potentially harsh effect of a decision under s 426A. However it is possible that the very tight time limit within which an application must be made, 14 days, may itself operate unfairly.
 Mark Aronson, ‘Process, Quality, And Variable Standards’ in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer Essays in Honour of Michael Taggart (Hart Publishing 2009) 13.
Grant Hooper researches and teaches public law at the University of Sydney Law School.
Suggested citation: Grant Hooper, ‘Minister for Immigration and Border Protection v SZVFW: The High Court on Unreasonableness and The Role of Judicial Review’ on AUSPUBLAW (5 September 2018) <https://auspublaw.org/2018/09/minister-v-szvfw-the-high-court-on-unreasonableness-and-the-role-of-judicial-review/>