The High Court has allowed an appeal against a decision of the Full Federal Court on notification of hearing requirements in refugee application hearings and the task of appellate courts in reviewing decisions that are purportedly ‘legally unreasonable’. Under s 426A of the Migration Act 1958 (Cth), where an applicant is invited to appear before the Tribunal but does not do so, the Tribunal ‘may’ make a decision on the review without taking further action to enable the applicant’s appearance before it. After the Minister refused the respondents protection visa applications, the respondents filed an application for review by the Refugee Review Tribunal but did not respond to the Tribunal’s requests for more information or attend a scheduled hearing. The Tribunal’s communications were sent only by post, and not also by phone or email, even after the non-response from the respondents. The FCAFC held that the Tribunal acted unreasonably in failing to attempt to contact the respondents by phone or email. The FCAFC also held that the Minister had failed to show that the primary judge’s evaluation of that unreasonableness involved any appealable error of law or fact analogous to the error that must be established in relation to discretionary judgments, as described in House v The King [1936] HCA 40.

The High Court unanimously allowed the appeal in four judgments, holding that the House principles had no application in this appeal, that the Tribunal did not act unreasonably in failing to take further action to contact the respondents, and that the FCAFC should have so decided. Kiefel CJ, Gageler J and Edelman J each agreed with the orders proposed by Nettle and Gordon JJ.

Nettle and Gordon JJ held that the FCAFC’s approach and decision were incorrect: the ‘only question’ for the FCAFC and the High Court was whether the Tribunal’s exercise of its s 426A power was beyond its power for being legally unreasonable: it was not (at [76]). Turning first to the nature of the court’s task in assessing whether a decision is legally unreasonable,

Nettle and Gordon JJ emphasised that the court’s task is to assess the quality of the administrative decision against the scope, purpose and objects of its statutory source (at [79]). The abuse of that power is not limited by specific ‘categories of conduct, process or outcome’, nor does it need to be ‘manifestly unreasonable’ or point to a specific error in the reasoning (at [81]–[83]). Legal unreasonableness is heavily fact dependent ([84]). While the primary judge’s task may involve an ‘evaluative’ process in examining the original decision, that does not require that an appeal court consider whether it was open to the primary judge to reach the opposite view from the decision-maker (at [85]). Turning to House v The Kingand the analogy between judicial review of an administrative decision and appellate review of judicial discretion, Nettle and Gordon JJ stated (at [86]–[87]):

In Li it was observed that, in determining the standard of legal reasonableness, an analogy between judicial review of administrative action and appellate review of judicial discretion is apparent. While the plurality had regard to House v The King, the plurality’s observations were not directed to the proposition, and do not state, that a House v The King error must be established in the context of judicial review of administrative decisions. Rather, the analogy drawn by reference to House v The King was that, in the same way that an appeal court does not interfere with a lower court’s exercise of a judicial discretion just because the court might have exercised the discretion in a different way, similarly, in a judicial review context, a court should not interfere with an administrator’s exercise of a discretion just because the court would have exercised the discretion in a different way.

The analogy drawn in Li did not go on to state that the principles applicable to appellate review of judicial discretion also apply in relation to judicial review of administrative action. It did not provide any support for the contention that an evaluative approach by a primary judge on an application for judicial review is to be treated as analogous to an exercise of judicial discretion. In the case of judicial review of administrative action, a discretion given to an administrative decision-maker is not transferred to, or picked up by, the primary judge; nor is the primary judge’s review of the administrative decision the exercise of a discretion.

Turning then to the standard of reasonableness in this case, Nettle and Gordon JJ reiterated that s 426A gave the Tribunal the power to decide to consider and decide a review without taking further action to enable an applicant to appear. While there was no express list of factors, the power remains limited by the scope and purpose of the Act as a whole, and particularly s 425’s requirement that the Tribunal must invite the applicant to appear and notify them in a specific set of methods (at [88]–[92]). If the Tribunal complies with those requirements, under s 441C the applicant is taken to have received the document (at [93]). Further, the Tribunal’s statutory task is to come to the correct decision in a case according to the material before it (at [94]), its powers, discretions and obligations include an exhaustive statement of the rules of natural justice (at [95]), and Parliament has conferred flexibility on the Tribunal (at [96]). Ultimately, for Nettle and Gordon JJ (at [97]):

The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness.

After stating the facts of the case (at [99]), and summarising the decisions of the lower courts (at [108]ff), Nettle and Gordon JJ emphasised that the notification requirements were satisfied, and thus the Tribunal was able to exercise its power under s 426A: ‘The significance of compliance with s 441A(4) was that the deeming effect of s 441C(4) was engaged and ss 425 and 425A were satisfied. The Tribunal was then permitted to engage s 426A and make a decision on the review without taking any further action to allow an applicant to appear before it. And that is what the Tribunal did in this case.’ (at [119]). The primary judge failed to note that s 441C had been satisfied, paid no regard to an earlier non-attendance by SZVFW and his wife at a meeting with the Minister’s delegate, which provided a further basis for the Tribunal to proceed without their appearance before it (at [120]–[122]). Ultimately, in light of the statutory source of the power, the subject matter of the review, the Tribunal’s approach, and the situation and conduct of SZVFW and his wife, the exercise of the power was not unreasonable (at [123]).

Kiefel CJ agreed with the orders of Nettle and Gordon JJ, and their Honours reasoning on the inapplicability of House v The King: the FCAFC was to decide the questions of legal unreasonableness for itself, and not require the Minister to identify an error in the primary judge’s reasoning (at [18]). For Kiefel CJ, the primary judge’s reasoning overlooked the intention in the Migration Act that the Tribunal be permitted to exercise its powers under s 426A if the preconditions are met (at [7]). In this case, they were: the s 425 invitation was delivered by a method specified in s 441A, and s 441C has the effect that SZVFW had received that document: ‘There was nothing before the Tribunal to suggest to the contrary of that state of affairs. It was entitled to proceed to consider the exercise of its powers under s 426A.’ (at [8]). Kiefel CJ stated that it was difficult to see how the Tribunal’s decision not to make further contact or adjourn the hearing was unreasonable, in light of the respondents’ earlier non-responsiveness (at [9]). The terms and purpose of s 426A, to ensure the Tribunal acts in an efficient manner, does not carry any implication that it should exercise its powers in favour of respondents (at [12]–[16]).

Gageler J also agreed with the orders of Nettle and Gordon JJ. Gageler J framed the question before the Court as focusing on the ‘standard of appellate review applicable to a challenge on an appeal by way of rehearing to a conclusion of a primary judge that an administrative decision-maker exceeded decision-making authority by making an unreasonable decision’ (at [19]). Resolving that question required examining, first, the nature of an appeal by way of rehearing, and, second, the nature of a legally unreasonable decision. For Gageler J, the appellate court must reach its own conclusion on the reasonableness of the administrative decision: it must not determine whether the primary judge’s review conclusion was open, but rather whether it was right (at [20]). After reviewing the facts of the case and the lower court decisions (at [21]ff), Gageler J turned to the first issue of an appeal by way of rehearing, emphasising the need for an appealable error (at [29]ff), and delineating two standards of review: an appeal of the exercise of discretion by a primary judge, of which House v The King provides the classic statement (at [37]ff), and the more general correctness standard, exemplified by the majority in Warren v Coombes [1979] HCA 9 (at [40]ff). For Gageler J, the line between these two standards (at [49])

is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.

Turning then to the nature of a legally unreasonable decision, Gageler J emphasised that the question is directed to whether the decision or action is within the scope of the repository’s statutory power (at [54]), and the appellate court’s jurisdiction is solely to decided whether the primary judge was right or wrong (at [55], [56]). References in recent case law to legal unreasonableness as an ‘abuse of power’ do not point to some inquiry into whether a decision-maker’s exercise of a lawful power might be ‘characterised as an abuse’ (at [58]).

Moving to the present Tribunal’s decision, Gageler J held that its choice was not unreasonable. The Tribunal made its decision under s 415(2)(a) to affirm the decision of a delegate of the Minister, and in doing so exercised its power under s 426A to make that decision without making further efforts to contact the respondents, and met the preconditions under s 425 and s 441C (see at [62]ff). Where the Tribunal has followed s 425, the applicant fails to appear, and, ‘mindful of the exhortations to be fair and just but also to be economical and quick’, the Tribunal would ‘ordinarily act reasonably’ in decided to exercise its s 426 discretion (at [69]). For Gageler J, ‘[n]othing before the Tribunal took the respondents’ application for review into the realm of the extraordinary’: they had failed to appear before the Minister’s delegate, and did not provide the Tribunal with any further documentation in support of their claim, suggesting that a further attempt to contact them would not elicit any response (at [70]). Consequently, the Tribunal’s decision was not unreasonable, and the FCAFC should have so decided (at [71])

Edelman J also agreed with the orders proposed by Nettle and Gordon JJ. Edelman J characterised the appeal as examining the nature of judicial restraint in the categories of judicial review of administrative action and review of decisions described as ‘discretionary’ (at [128]–[129]). For Edelman J, the first issue was the nature of judicial review for unreasonableness, and his Honour held that the FCC erred in setting aside the Tribunal’s decision on the ground of unreasonableness. The second issue was the ‘circumstances in which judicial restraint should be exercised on appeal’: here, the FCAFC should not have exercised judicial restraint in considering the appeal against the FCC’s decision (at [130]).

Turning to the judicial review for unreasonable question, Edelman J emphasised that the reasonableness constraint is usually based on a statutory implication, that precise content of any implied duty will depend on the circumstances, and that there is only one test for unreasonableness, though its content depends on the terms, scope, purpose and object of the statue (at [131], [133], [135]). After reiterating the facts here (at [136]ff), Edelman J held that the matters relied on by the primary judge — the lack of evidence of delivery of the notice, the short period of time between sending the invitation and the hearing, the significance of the hearing to the respondents, and the lack of ‘follow up’ (at [139]) — do not, ‘even in combination’, establish unreasonableness: the statutory requirements of providing a review mechanism that is ‘fair, just, economical, informal and quick’ and the ‘exhaustive’ statement of fairness and justice requirements, mean that the respondents, under s 441C, were deemed to have received the invitation (at [140]). Consequently, the Tribunal’s decision was not legally unreasonable for the reasons it gave, to which Edelman J added three further reasons: applicants are instructed to inform the Department of any postal address changes, the letter was sent to their address, and the respondents had not attended a scheduled interview despite numerous attempts to contact them: ‘It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile’ (at [141]).

Moving then to the issue of judicial restraint on appeals, Edelman J noted it is sometimes labelled as ‘review of a “discretionary decision”‘, and then urged that this a term that might cause confusion, due to its ‘slipperiness’ in being used in law in many different ways, and because ‘some categories of decision that were once discretionary are still described as such, although they are no longer the subject of any real judicial restraint’ (at [148]). For Edelman J, ‘[w]here the source of the power and grounds of review is statutory, then any requirement for judicial restraint should be implied from, or based upon, the terms of the statute’ (at [151]), and while decision making powers that give a wide breadth to the decision maker suggest a manifested legislative intention of judicial restraint, the breadth of a power is not conclusive of that intention (at [152], [153]). In the case of an unreasonableness finding, there is no judicial restraint: the primary judge’s judicial review involved a question of law which had only one right answer, and the appeal was concerned with the correctness of that answer (at [154]). While minds might differ in assessing that unreasonableness, or the values on which it is based, ‘our constitutional tradition has never been to exercise judicial restraint’ in these kinds of appeals, and either express wording in the legislation or a strong foundation for an inference would be needed, neither of which can be found in the Migration Act (at [155]).