Judicial Review – Jurisdictional Error – Unreasonableness


Judicial Review

For decisions of the Administrative Appeals Tribunal to be heard at Courts, the decisions must have jurisdictional errors whereby the Member makes a decision outside the limits of the functions and powers conferred on him or her. By contrast, incorrect decision within the boundaries of his or her authority is an error within the jurisdiction. In summary, you cannot submit unfavorable decisions of the Tribunal for judicial review without establishing grounds for jurisdictional error.

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

High Court confirmed the availability of judicial review on a ground of illogical and irrational reasoning processes. By its implications, it is now clear that an administrative decision can now be reviewed on the basis that no rational or logical decision-maker could arrive at the decision on the same evidence. the conception of Justices Crennan and Bell of an illogical and irrational decision as “one at which no rational or logical decision-maker could arrive”, was closely related to the Wednesbury unreasonableness ground of review, which asks whether a decision is “so unreasonable that no reasonable [person] could ever have come to it”: Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

Justices Crennan and Bell stated at [130] – [131] and [135]:

  • What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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.
  • 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 that 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.

Landmark Decision – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

High Court held that unreasonableness was not tied to the Wednesbury test, nor did it only apply to decisions that were completely irrational. The decision catches decisions which are not vitiated by any other obvious legal error, but nevertheless lack an evident and intelligible justification. That is, the unreasonableness test can be outcome-focused and how evident and intelligible the conclusion must depend upon the particular statute under which the decision was made.

On a practical level, this decision cautions the administrative decision-makers against taking too hard a line against applications for adjournment made by review applicants. It integrates considerations of unreasonableness, rationality and logicality in determining a jurisdictional error. Legal unreasonableness is invariably fact dependent and it can attach to the unreasonableness of the processor to the unreasonableness of the result.

Chief Justice French held that the MRT’s decision to deny Li the adjournment did not engage with the submission made on her behalf about the imminent decision by TRA. He held that there was “an arbitrariness about the decision, which rendered it unreasonable”. In a joint judgment, Justices Hayne, Kiefel and Bell developed further the idea that unreasonableness is linked to rationality and logicality. They held that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”, and that it was not clear how the MRT reached that conclusion in the circumstances of Li’s case. Similarly, Justice Gageler held that decision-making authority “conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purpose of the statute.” He found that the MRT’s decision was lacking in a true weighing-up of Ms Li’s application for an adjournment: “The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.”

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, extreme illogicality or irrationality must 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 and against the framework of the inquiry being as to whether or not there has been a jurisdictional error on the part of the Tribunal”. Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result but also extends to fact-finding which leads to the end result, albeit that the overarching question is whether the decision was affected by jurisdictional error.

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

The Applicant applied for a partner visa, which was refused by a delegate of the Minister and referred to the Administrative Appeals Tribunal. The Tribunal affirmed the delegate’s decision and relevantly found that two of the criteria for the grant of the visa were not met – first, the applicant did not meet the requirement that there be compelling reasons for the grant of the visa and second, the applicant did not meet a relevant public interest criterion as he had outstanding debts to the Commonwealth and had not taken appropriate steps to arrange for payment of the debt. In effect, the Tribunal had affirmed the decision.

High Court delivered three concurring judgments: a joint judgment of Kiefel CJ, Gageler and Keane JJ and separate judgments of Nettle and Edelman JJ. In the simplest form, the Court explained that a jurisdictional error only arises where an error of law met the threshold of materiality. The error of law, having regard to the relevant provisions of the Migration Act, could not amount to a jurisdictional error because the Tribunal’s independent finding meant the error of law was not material to the decision as the Tribunal was bound to affirm the delegate’s decision given the independent finding.