1. Administrative Law Update -
Unreasonableness
Insights following Minister for
Immigration and Citizenship v Li
15 September 2014
Emma Turner, Special Counsel

2. Outline
> Minister for Immigration and Citizenship v Li [2013] HCA 18
> Key Principles
> Minister for Immigration and Border Protection v Pandey
[2014] FCA 640
> Agar v McCabe [2014] VSC 309
> Topouzakis v Greater Geelong City Council [2014] VSC 87
> Tips for avoiding unreasonableness in decision-making
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3. Wednesbury - a circular
standard
> The test:
> Where an exercise of statutory power is so unreasonable that no
reasonable person could have so exercised the power.
> Wednesbury unreasonableness often described as a judicial
‘safety net’.
> Li one of the small number of cases where decision
invalidated on sole ground of unreasonableness.
> The High Court in Li in dismissing an appeal from a judgment
that a decision infected by Wednesbury unreasonableness
has confirmed such may amount to jurisdictional error.
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4. ‘a sighting of “rare bird” of
unreasonableness in solo
flight” (Leighton McDonald (2014) 25 Public Law Review 117)
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5. Minister for Immigration and
Citizenship v Li [2013] HCA 18
> MRT decision
> “considers that the applicant has been provided with enough opportunities
to present her case and is not prepared to delay any further”
> Federal Magistrates’ Court
> decided in favour of Ms Li on the basis that “the Tribunal’s decision to
proceed [in] the circumstances rendered it unreasonable such as to
constitute unreasonableness in the Wednesbury Corporation sense”.
> Federal Court
> described the review function of the MRT as “its core function” and an
unreasonable refusal of an adjournment will not just deny the a
meaningful appearance to the applicant but will mean that the MRT has
not discharged its core statutory function in reviewing the decision and
such a failure constitutes jurisdictional error for the purposes of s75(v) of
the Constitution.

6. High Court’s decision
French CJ: the decision was not informed by any consideration
other than the asserted sufficiency of the opportunities provided
to Ms Li to present her case - an, arbitrariness about the decision
which rendered it unreasonable.
Plurality: failed to consider that as the skills assessment was
being reviewed this should have conveyed to the MRT that Ms Li
did not consider she had an opportunity to present her case,
which it was required to consider in the context of s360.
Gageler J: Nothing in the MRT's reasons suggested that it
considered Ms Li’s prospects and there was no basis to infer that
the MRT considered that the adjournment would be likely to have
been unduly protracted. No reasonable tribunal, seeking to act in
a way that was just and fair in accordance to substantial justice
and merits of case, would have refused the adjournment.
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7. French CJ
> Every statutory discretion is confined by the subject matter,
scope and purpose of the legislation under which it is
conferred.
> Every discretion has to be exercised, according to “the rules of
reason”.
> Vitiating unreasonableness may be characterised in more than
one way susceptible of judicial review.
> Area of decisional-freedom however cannot be construed as
attracting a legislative sanction to be arbitrary, capricious or to
abandon common sense.
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8. Plurality
> Legislature is taken to intend that a discretionary power,
statutorily conferred, will be exercised reasonably.
> The legal standard of reasonableness is the standard
indicated by the true construction of the statute.
> Legal unreasonableness is not so confined to an irrational or
bizarre decision, or one so unreasonable that no reasonable
decision-maker would have made it, as ‘Wednesbury is not the
starting…nor should it be considered the end point’.
> Instead a decision will be vitiated by legal unreasonableness
where it ‘lacks an evident and intelligible justification’.
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9. Gageler J
> Reasonableness is not implied as a condition of validity if
inconsistent with the terms in which a power or duty is
conferred or imposed or if otherwise inconsistent with the
nature or statutory context of that power or duty.
> Unreasonableness is constrained by:
> the stringency of the Wednesbury test;
> the practical difficulty of assessing the test where
considerations of policy are concerned.
> Successful invocation of unreasonableness has been rare and
‘nothing in these reasons should be taken as encouragement
to greater frequency’.
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10. Key Principles
> The requirement of reasonableness flows from or is connected
with an implied legislative intention that a discretionary power
that is statutorily conferred must be exercised reasonably: [29],
[63], [88].
> Legal unreasonableness can be:
> a conclusion reached after the identification of an underlying
jurisdictional error in the decision-making process; or
> it can be a conclusion reached without necessarily identifying
another jurisdictional error from which an undisclosed error may
be inferred: [27]-[28],[76].
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11. Key Principles cont…
> Unreasonableness can be inferred where the decision
appears to be arbitrary, capricious, without common sense or
“plainly unjust“:[28],[110].
> Where reasons are given, judicial review is concerned with
seeing if there is an evident, transparent and intelligible
justification within the decision-making process:[76].
> Regard can also be given to the outcome of the decision:
whether the “decision falls within a range of possible,
acceptable outcomes which are defensible in respect of fact
and law“: [105].
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12. Key Principles cont…
> The legal standard of reasonableness and the indicia of legal
unreasonableness will need to be found in the scope, subject
and purpose of the particular statutory provisions in issue in
any given case: [67].
> 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: [30],[66].
> The test of legal unreasonableness is stringent: [113].
> In some circumstances a proportionality analysis of the
decision-making may be appropriate to determining whether or
not the decision was reasonable: [30]-[31], [73]-[74].
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13. Minister for Immigration and Border
Protection v Pandey [2014] FCA 640
> MRT refused an adjournment despite applicants advising they
may have misunderstood or been misguided by their migration
agent and queried whether the applicant was a genuine
applicant for a student visa.
> Federal Circuit Court found the Tribunal failed to consider an
issue relevant to the determination of the visa – the
genuineness of Ms Pandey’s intention to be a student and
whether she would genuinely undertake study for which she
might enrol.
> Federal Court found the primary judge erred in concluding that
the tribunal was bound to consider the somewhat hypothetical
question of whether Ms Pandey would genuinely undertake a
course of study if she were to enrol.
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14. > The legal reasonableness of the Tribunal’s decision is
“borderline”.
> the circumstances of this case put it into the category of case
where the Tribunal had a “genuinely free discretion” or
“decisional freedom”
> The Tribunal’s decision could not be described as arbitrary,
capricious, lacking in common sense or plainly unjust.
> Nor could it be described as lacking in an evident and
intelligible justification.
> Whilst a different Tribunal might have reasonably arrived at a
different decision, that fact alone does not mean that the
decision was legally unreasonable. Nor does the fact that the
court, on review, might also have exercised the discretion
differently.
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15. Agar v McCabe [2014] VSC 309
> The ground of unreasonableness will be made out where the
decision is manifestly unreasonable, that is, where it lacks an
evident and intelligible justification or simply defies
comprehension.
> Further a decision will be unreasonable where it is illogical or
irrational in the sense that it involves illogical findings, or
inferences of fact unsupported by probative material or logical
grounds.
> The ground may also be established where a decision under
review is plainly inconsistent with other decisions made in
respect of circumstances that are substantially similar, if not
identical to those under review.
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16. > Forrest J determined that the Magistrates’ orders were not
manifestly unreasonable for the following reasons:
> The relevant test was one of fact and degree and allows for
differences in conclusions – he may not have agreed with the
Magistrate however the Magistrates’ conclusion did not defy
comprehension or lack an intelligible justification.
> It fell to the Magistrate to assess the reliability and credibility of Mr
Agar as a witness and it follows the strength of his evidence as to
demonstrating legitimate purpose.
> Second, nothing in the Magistrates’ reasons, or for that matter the
transcript, is suggestive of irrationality or illogicality, or the
drawing of inferences unsupported by probative material.
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17. Topouzakis v Greater Geelong
City Council [2014] VSC 87
> Council barred plaintiff from entering municipal building and
advised he could request a review of the ban two years after it
commenced.
> Under the local law Council had the power to restrict access to
municipal buildings where nuisances adversely affect the
enjoyment, health and welfare of persons in the municipality.
> In exercising a discretion under the local law Council was
required to act fairly and reasonably and in proportion to the
breach.
> Reason – plaintiff admitted to being charged with offensive
conduct occurring at the council owned leisure center.
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18. > Emerton J had to have regard to affidavit material from Council
officers setting out the basis for the decisions.
> the general principle is that a court, when considering the
lawfulness of a decision, may admit evidence in quite limited
circumstances so as to elucidate, but not fundamentally collide
with, the reasons stated by the decision-maker [38].
> failure by the council to act in compliance with its own laws to
observe the requirement to act “fairly and reasonably” and in
“proportionate to the nature and extent of the breach” could
give rise to jurisdictional error – as the provision was restrictive
rather than facultive (in contrast to Li) and the lawfulness of
the council’s decision was affected by not doing what the law
required.
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19. > Emerton J found the Council’s decision unlawful because the
council failed to comply with the requirement of the local law in
exercising its discretion to act reasonably and in proportionate
to the nature and extent of the breaches.
> Her Honour remarked were it necessary to decide she would
hold the decision was unreasonable in the Wednesbury sense
as the:
> basis for the ban not clear or whether responsive to
assuaging the concerns of the relevant kind;
> the period of the ban was arbitrary; and
> lacked an intelligible justification.
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20. Implications for decision-makers
> Decision-makers ought to be aware of the
implications of Li:
> Considering whether their decision has:
> an evident and intelligible basis
> where no reasons (or scant reasons provided) the
decision-making process is documented and
transparent and can be explained at a future date
if required
> Whether the outcome falls within the a range of
possible decisions which are defensible in fact and
at law
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21. Implications for decision-makers
> What is reasonable in a given circumstances (the
standard of reasonableness) is to be determined
from the scope, subject and purpose of particular
statutory provisions in the given case.
> In appropriate cases, a decision may invoke a
consideration of whether it is a proportionate
response to the question to be decided, having
regard to the scope and purpose of the
discretionary power in question.
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22. Be wary of using a
sledgehammer to crack a nut!

23. But be confident of the degree
of decisional freedom when
exercising discretional power

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QUESTIONS

25. Disclaimer
The information contained in this
presentation is intended as general
commentary and should not be regarded as
legal advice. Should you require specific
advice on the topics or areas discussed
please contact the presenter directly.
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26. 26
Emma Turner
Special Counsel
Telephone: 0439 523 193
Email: eturner@rk.com.au