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. Continue reading