By Sara Dehm and Cait Storr
The administration of migration and asylum applications is one of the most politicised powers of the Commonwealth government. Not only are the administrative decisions of the Department of Immigration and Citizenship frequently on the front pages, but the processes of appeal — via the Refugee and Migration Review Tribunals through to the Federal and ultimately the High Court — can also expose the sometimes hazy character of the separation of powers in Australia.
Judicial review of administrative decisions on migration and refugee status is now one of the key drivers of Australian administrative law. For instance, the question of how much scope the courts have to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal, particularly in the exercise of their respective statutory discretions as delegated under the Migration Act 1958 (Cth), has generated a significant line of High Court cases on procedural fairness and the fair hearing rule, from Eshetu through Miah to SZGUR. The legislature has made numerous attempts to limit the application of common law principles of procedural fairness to various delegated powers of the Migration Review Tribunal. Whether and to what extent common law principles of unreasonableness apply to such delegated decision-making has emerged as an area of key contention in these cases.
The decision in Minister for Immigration and Citizenship v Li  HCA 18 adds to this small but growing body of law which serves to refine the principles, operation and scope of what is unreasonable conduct of decision-makers within the increasingly politicised statutory patchwork that the Migration Act 1958 has become. The UK case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1 is frequently taken as the departure point for determining the standard of ‘unreasonableness’ for courts and tribunals. In Wednesbury, Lord Greene MR famously stated that the courts can intervene where a decision by a Minister or government body ‘is so unreasonable that no reasonable authority could ever have come to it’, a definition frequently critiqued as circular. Australian courts have seemed reluctant to either reject Wednesbury reasonableness because of this uncertainty or to expand its application.
In Li, the High Court held that a Migration Review Tribunal decision to refuse an adjournment was unreasonable as it lacked an ‘evident and intelligible justification’. In reaching this decision, the majority judgment cautioned that Wednesbury is ‘neither the beginning nor the end point’ of unreasonableness in Australian law; and there was unanimous insistence that, despite the operation of statutory attempts to exclude key review functions of the Migration Review Tribunal from common law requirements of procedural fairness, unreasonableness in delegated decision-making can still constitute jurisdictional error reviewable by the courts.
The Li decision thus appears to indicate an increased willingness on the part of the High Court to stand firm in insisting upon the maintenance of some basic level of judicial review in migration decisions, despite repeated attempts by the executive to monopolise the discretion to grant or deny legal entry to Australia. Given that the Minister for Foreign Affairs, Senator Bob Carr, recently suggested that the Refugee Review Tribunal determination process was ‘not hard-headed enough’ and called for a ‘clampdown’ on ‘economic migrants’ — a new idiom in the debate echoed by Prime Minister Kevin Rudd in his recent visit to Papua New Guinea — the ratio of Li is unlikely to be left untested for long.
Who is Li? What did she come to represent before the High Court?
Xiujuan Li, a student training and obtaining work experience as a cook in Brisbane, applied for a Skilled — Independent Overseas Student (Resident) visa in February 2007. Eligibility in this visa class required proof of a positive skills assessment from Trades Recognition Australia, which Li had obtained. During the course of interviews with the Department of Immigration and Citizenship, it emerged that Li’s migration agent at the time had supplied false and misleading information to Trades Recognition Australia, a fraud confirmed by Li’s subsequent migration agent. On this basis, in January 2009, the Department refused to grant the visa.
Li applied to the Migration Review Tribunal for review of the Department’s decision. The Tribunal did not respond until nine months later in September 2009, inviting Li to a hearing. Li’s agent responded that Li had accumulated new work experience, and had again applied for and failed to obtain a positive Trades Recognition Australia assessment; but that this result was due to ‘fundamental errors’ on the part of Trades Recognition Australia, which the body itself was reviewing (the nature of Trades Recognition Australia’s errors are not disclosed in the case history). The agent then requested that the Tribunal ‘forbear from making any final decision’ on Li’s visa application until the outcome of the Trades Recognition Australia review was finalised.
On 25 January 2010, and without any further communication between the parties, the Migration Review Tribunal affirmed the Department’s refusal of Li’s application, stating in a letter to Li only that she had been ‘provided with enough opportunities to present her case’ and the Tribunal was ‘not prepared to delay any further…’.
Li appealed to the Federal Magistrate’s Court asserting a denial of procedural fairness. Federal Magistrate Burnett set aside the Tribunal’s decision, holding that ‘the Tribunal’s decision to proceed in those circumstances rendered it unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense’. The Minister’s appeal to the Full Court of the Federal Court was dismissed, with Justices Greenwood and Logan holding that the Tribunal’s refusal to exercise its discretion in s 363(1)(b) of the Act to adjourn Li’s hearing until the Trades Recognition Australia assessment was finalised was indeed unreasonable, and constituted jurisdictional error in that it failed to discharge the Tribunal’s ‘core function’ of reviewing the Department’s decision.
Taking Li to the High Court
Despite unambiguous decisions by two courts, the Immigration Minister nevertheless sought and obtained special leave to appeal to the High Court on the matter of whether the Migration Review Tribunal’s refusal to exercise its discretion under s 363(1)(b) to adjourn the case was unreasonable. The essence of the appeal was that Li had simply not satisfied the criteria for visa eligibility at the time of the decision, and had sought an adjournment ‘in the hope that the passage of further time’ would make her eligible. In such circumstances, surely ‘enough was enough’, and the Tribunal could not be required to ‘hear, in effect, a series of applications which could be unending’.
The key issue before the High Court was whether common law considerations of procedural fairness were excluded by the purportedly exhaustive statement on natural justice provided in s 357A(1) of the Act. The Minister argued that there was no deficiency in the opportunity afforded to Li to present her case, and that in such circumstances a refusal to exercise a discretion to adjourn could not constitute unreasonableness, and certainly not unreasonableness amounting to jurisdictional error.
The High Court held unanimously that the Tribunal’s refusal to adjourn its decision amounted to unreasonableness constituting jurisdictional error, and in doing so confirmed yet again that the federal government is required under the common law to act fairly despite its efforts to limit access to the courts in migration matters. The decision comprises a plurality judgment from Justices Hayne, Kiefel and Bell, with separate judgments from Chief Justice French and Justice Gageler. Each judgment differs in its line of reasoning and specifically in the manner in which it addresses the application and scope of general law principles of reasonableness. For this reason, we consider two key issues in the case, and focus on the plurality judgment.
The Decision — Reasonableness requires an ‘evident and intelligible justification’
The first key issue was whether the Migration Review Tribunal’s discretion under s 363(1)(b) to ‘adjourn reviews from time to time’ had been appropriately considered by the Tribunal in Li’s case. The plurality held that while the Tribunal was not obliged to give Li ‘every opportunity’ to present her ‘best possible case and to improve upon the evidence’, it nonetheless needed to provide an ‘evident and intelligible justification’ for its refusal to adjourn its decision as requested by Li (at ). Accordingly, the Tribunal had not conducted a review in the manner required by the Act, thereby failing to discharge its core function.
In reaching this conclusion, the plurality found that the discretion to adjourn was subject to a presumption of law that the Tribunal’s discretionary power would be exercised reasonably. Such a presumption did not amount to substituting the court’s view in place of the decision-makers; rather, in accordance with the past cases of Sharp v Wakefield  AC 173 and Klein v Domus Pty Ltd  HCA 54, it required that even a discretionary decision must be ‘legal and regular’ and ‘not arbitrary, vague and fanciful’ (at ), and be determined with reference to the scope and purpose of the relevant legislation (at ).
Cautioning that Wednesbury unreasonableness was neither the ‘start’ nor the ‘end’ point of reasonableness in Australian law, the plurality noted that the apprehension of unreasonableness is not limited to decisions that are ‘irrational’ or ‘bizarre’ (at ). Rather, examples of specific errors that could constitute unreasonableness include misconstruing statutory operations, acting in bad faith, and failing to consider relevant considerations or considering irrelevant considerations in decision-making. Furthermore, error can be objectively inferred from an outcome even where the particular error in reasoning cannot be identified.
The plurality held further that although the Migration Review Tribunal is required to act efficiently, this objective needs to be ‘weighed against’ its other statutory obligations, namely the duty to invite Li to appear (s 360) and the requirements for conducting its review (under pt 5 div 5). The refusal to adjourn its decision until the skills assessment review was concluded meant that Li was not given a reasonable opportunity to present her case. Clearly unimpressed by the Tribunal’s conduct in ‘abruptly’ refusing an adjournment, the plurality noted that (at ):
The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application.
Although the precise error in reasoning remained unclear in Li’s case, the ‘result itself bespeaks error’ such that an error could be inferred. The plurality nevertheless suggested that the Migration Review Tribunal may have given ‘too much weight’ to the fact that Li had already presented evidence and ‘insufficient weight’ to her need to present more (at ); or wrongly took into account the previous fraudulent conduct, which, if true, would have been an ‘irrelevant consideration’ (at ).
For Justice Gageler, reasonableness in the exercise of discretion is ‘a default position’ in the common law’ (at ). It requires evidence of both how and why a particular decision was made (at ), which the Tribunal did not provide. His Honour’s judgment noted that Wednesbury is a species of unreasonableness marked by two principal constraints: the stringency of the test itself, and the difficulty of applying the test in practice. The Migration Review Tribunal’s decision on Li’s application clearly fell within these constraints, however Li’s was a ‘rare case’ and ‘nothing in these reasons should be taken as encouragement to greater frequency’ of such findings (at ).
Similarly, Chief Justice French held that although the Act confers key discretions on the Migration Review Tribunal, it nonetheless imposes a ‘framework of rationality’. Although there may be areas where ‘reasonable minds may reach different conclusions about the correct or preferable decision’, the discretion could not be exercised in a way that was ‘arbitrary or capricious or to abandon common sense’ (at ). As the Tribunal’s refusal to adjourn its decision was not accompanied with reasons and ‘was fatal’ to Ms Li’s case, it appeared arbitrary and thus unreasonable (at ).
The second key issue in Li was the correct application of s 357A. Section 357A(1) purports to provide an ‘exhaustive statement of the natural justice hearing rule’ for matters within pt 5 div 5. At the same time, the section stipulates that the Migration Review Tribunal is to ‘act in a way that is fair and just’ (s 357A(3)). While ultimately deciding that the scope of s 357A did not need to be decided in Li’s case, the plurality commented that the requirements of s 357A(3) should be determined with reference to the manner in which pt 5 div 5 of the Migration Act 1958 (Cth) requires the Migration Review Tribunal to conduct a review (at ). This included considering the Tribunal’s duty under s 360 to extend a ‘meaningful’ invitation to applicants to appear in order to give evidence and present argument, as well as the statutory discretion under s 363(1) to adjourn a review.
Whereas the plurality chose to circumvent the issue of how s 357A is to be read, Chief Justice French dealt squarely with the scope of s 357A(1). Holding that the section should be read down on its own terms to apply only to the ‘matter‘ the Migration Review Tribunal deals with in pt 5 div 5 of the Act, Chief Justice French identified such matters as ‘written statements and arguments regarding decisions under review’ (at ). As the Migration Review Tribunal’s discretionary power to adjourn a review is not such a ‘matter’, s 357A(1) does not apply. This left the discretion to adjourn subject to the requirement in s 357A(3) to act ‘in a way that is fair and just’, which for the Chief Justice was a confirmation of the common law of procedural fairness.
After Li: Understanding reasonable discretion and delays
The Li case raises an interesting tension between the political demands and statutory provisions for efficiency in administrative decision-making and the common law requirements of procedural fairness and the reasonable exercise of discretion. In Li, the Minister’s appeal rested, in part, upon the proposition that Li was seeking to gain an undue advantage through deliberately delaying the Migration Review Tribunal’s decision until her circumstances changed. This argument is perhaps unsurprising in a political climate in which migrants are frequently characterised as manipulating the Australian legal system. Pressure emanates from many sources for administrative decision-makers to resolve migration matters expediently; indeed, the Migration Review Tribunal and Refugee Review Tribunal, like some other courts and administrative tribunals, have adopted clear caseload standards stipulating that they seek to make at least 18,000 decisions per year and decide at least 70 per cent of these cases within specified timeframes.
As the High Court makes clear in Li, however, efficiency is neither the only nor the pre-eminent obligation that the Migration Review Tribunal must satisfy in carrying out its core function of review. The Tribunal has a statutory obligation to ‘pursue the objective’ of providing a review mechanism that is ‘fair, just, economical, informal and quick’ (s 353) — an obligation that, as the High Court has acknowledged, and reiterated in Li, is not necessarily internally coherent and cannot provide grounds for judicial review. Furthermore, the legislature has attempted to exclude from the Migration Review Tribunal’s obligations the requirement to satisfy the natural justice hearing rule, whilst at the same time directing the tribunal to be ‘fair and just’ in its decision-making.
The Li decision indicates that the judiciary’s insistence on procedural fairness in migration decisions will not be easily dislodged where the legislature’s directions to the Migration Review Tribunal are not coherent. Although the courts have proceeded with caution lest unreasonableness become a form of merits review in disguise, the Li decision provides further guidance on ‘unreasonableness’ as amounting to the lack of an ‘evident and intelligible justification’ for the exercise of administrative discretion. This adds to the consolidation of unreasonableness as a grounds for judicial review in Australian administrative law, providing a key ‘safety valve’ for the setting aside of decisions that appear arbitrary or coloured by irrelevant considerations.
AGLC3 Citation: Sara Dehm and Cait Storr, ‘Unreasonable Refusal to Adjourn: Minister for Immigration and Citizenship v Li’ on Opinions on High (17 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/17/dehm-storr-li/>.
Sara Dehm is a Senior Fellow (Melbourne Law Masters) and PhD candidate at Melbourne Law School.
Cait Storr is a Sessional Academic and PhD candidate at Melbourne Law School.