(4.4) JR OF LAW MAKING - DECISIONAL GROUNDS OF REVIEW (Unreasonableness)

Question 1

ADJR Act: Judicial review is available where the exercise of a power is ‘so unreasonable that no reasonable person could have so exercised the power’ per

Answer 1

(s 5(2)(g) ADJR)

Question 2

Common law: Wednesbury established that

Answer 2

a decision will be ‘unreasonable’ if it was so unreasonable that no reasonable authority could have come to it.

Question 3

Li relaxed Wednesbury Unreasonableness by

Answer 3

suggesting that the standard of reasonableness is indicated by the true construction of the statute and does neither start or end with Wednesbury unreasonableness, and is not limited to irrational or bizarre administrative decisions.

Question 4

Accepted default threshold for unreasonableness is satisfied if

Answer 4

(1) There is no ‘evident and intelligible justification’ for the decision ‘on the facts and matters falling for consideration in the exercise of the statutory power’ (Li)
(2) The decision does not fall within a range of possible acceptable outcomes which are defensible in respect of the facts and law (SZVFW)
(3) The result could not have been reached if proper reasoning had been applied in the exercise of the power in the particular circumstances (SZVFW)

Question 5

Whilst Li clearly relaxed the test of unreasonableness what did SZVFW suggest?

Answer 5

the high bar ostensibly removed in Li is still important – the unreasonableness test was described as ‘necessarily stringent’

Question 6

In Li, how did Gageler J describe unreasonableness?

Answer 6

as a safety net, setting the minimum standard expected of a DM

Question 7

Case demonstrating unreasonableness from inconsistent treatment of like case

Answer 7

(Pestell – neighbours with similar homes had dif council rates charged)

Question 8

Case demonstrating unreasonableness from decision being fundamentally flawed by a statistical fallacy

Answer 8

Austral – economically irrational fishing quota – expert evidence said it was wrong/complete fallacy

Question 9

Case demonstrating unreasonableness from oppressive treatment that aims to penalise in decision

Answer 9

Edelsten – GP practice taxed so harshly as to remove all income – statute did not permit power to be used as punishment)

Question 10

Case demonstrating unreasonableness from failure to make inquiries where ‘it is so obvious that evidence is readily available and centrally relevant, it is unreasonable not to make reasonable attempts to obtain it’ in decision

Answer 10

Prasad – failure to ask why statements (like what they had for dinner in 20 min interview) –> inquiry into whether was a sham marriage for visas

Question 11

‘Legal unreasonableness’ occurs if a discretionary decision-maker

Answer 11

exceeds the area of decisional freedom entrusted to the decisionmaker by the enabling legislation (Li; SZFW)

Question 12

Application of the standard of unreasonableness requires

Answer 12

an objective assessment by the reviewing court, in the legal and factual context of the case.

Question 13

Unreasonableness amounts to

Answer 13

to a jurisdictional error (Li, SZVFW) + MATERIALITY (not ADJR)

Question 14

High Court’s decision in Li expanded the concept of “Wednesbury unreasonableness” by

Answer 14

holding that the question of unreasonableness depends upon the “construction of the statute” and “whether the statutory power has been abused”

Question 15

Facts in Wednesbury

Answer 15

condition imposed on Cinema licence to now allow children under 15 to enter w/o adult

• challenged condition arguing it was unreasonable and ultra vires

Question 16

Outcome in Wednesbury (1948) UK case

Answer 16

Condition was not unreasonable. Local authority could consider physical and moral health of children

• Legal Standard: unreasonableness ground requires ‘something so absurd that no sensible person could ever dream that it lay within the powers of the authority”

Question 17

Facts in Minister for Immigration and Citizenship v Li (2013)

Answer 17

• Li made 2nd application for skilled work visa after 1st application rejected for false info
• 1st rejection based on adverse skills assessment by authority
• Li requested adjournment of merits review hearing, on basis there were conceded errors in skills assessment
• adjournment was refused and decision to refuse visa affirmed

Question 18

Outcome in Minister for Immigration and Citizenship v Li (2013)

Answer 18

Decision not to adjourn and affirm visa was invalid on ground of unreasonableness - no possible intelligible justification for what happened

• In the circumstances of the case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute’

Question 19

Facts in SZFW (2018) affirmed Li

Answer 19

• The applicants were refused protection visas by a departmental official - sought RRT review of decision, RRT notified them to provide submissions and attend hearing but applicants didn’t attent
• RRT affirmed decision under power under section 426A

Question 20

Outcome in SZFW (2018) affirmed Li - was the RRT exercise of the power in s 426A unreasonable?

Answer 20

High Court – not unreasonable

• Migration Act clearly gave the RRT power to act as it did
• unreasonableness requires something unusual, overwhelming or absurd (not the case here)

Question 21

Test in Prasad for failure to make inquiries warranting finding of unreasonableness

Answer 21

(1) Obvious that material is readily available;
(2) Material must be centrally relevant to the decision;
(3) DM must have made no attempt to obtain relevant material.

Question 22

failure to make inquiries warranting finding of unreasonableness –> is there a freestanding requirement to make inquiries to supplement information?

Answer 22

NO (SZIAI) BUT
may be exceptional circumstances where failure to make inquiries of critical information may be a ground of review (eg in Prasad)

Question 23

Pestell (1972) - why was decision to charge dif rates for neighbours with similar homes - Pestell had a supposed workshop in back, but wasn’t making industrial use of the land

Answer 23

inconsistency of treatment

• Impermissible distinction between industrial and residential – section 121 test was whether it would be of special benefit to a portion of the Council’s local area
• NB logic of the High court decision is that all land benefitted by the works would have to be subject to the special rate – ie, Pestell may still have to pay the rate in the end (but it may have been reduced because spread across a wider set of people?)

Question 24

How did Menzies J in Pestell distinguish between Wednesbury unreasonableness and merits review?

Answer 24

soundness related to the merits – an unjustifiable decision is likely to be absurd in the sense required by Wednesbury unreasonableness

Question 25

Facts Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993)

Answer 25

statistical problems

• management plan under Fisheries Act included formula for determining allocation of catch quotas
• Austral Fisheries argued that the formula contained a statistical fallacy which led to unfair catch allocations
• expert evidence that it was flawed

Question 26

Outcome in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993)

Answer 26

Fisheries Management Plan was void for unreasonableness by reason of the statistically flawed formula in that no reasonable person could ever have devised it

Question 27

Facts in SZIAI (2009)

Answer 27

failure to make inquiries

• Tribunal invited applicant to comment on letter from Australian Ahmadiya association which said certificates provided of SZIAI’s religion were fake
• but applicant couldn’t provide any further proof of his religion

Question 28

Outcome in SZIAI (2009) Was it unreasonable of the AAT to conclude certificates were forgeries without ringing the mobile numbers given by the authors on the certificates?

Answer 28

No - calling wouldn’t have resulted in any more useful info
- Firstly, there was nothing to indicate that any further inquiry as to the authenticity of the certificates would have yielded a useful result

• Secondly the response from SZIAI’s solicitors indicated the futility of further inquiry

Question 29

Per SZIAI (2009) when might a failure to inquire into a fact amount to unreasonableness?

Answer 29

it may be that a failure to make an obvious inquiry into a critical fact, the existence of which is easily ascertained could, in some circumstances … [result] in a decision being affected in some way that manifests itself as a jurisdictional error

Question 30

What was the failure to make an inquiry in CHK16? (case where lawyer stuffed up but didn’t say anything bc wanted to get paid) –>Here disregard of errors + the requirements in s 473DD of the Migration Act for consideration of new information had not been met

Was it unreasonable?

Answer 30

HERE NOT UNREASONABLE THO BC - high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions.

It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.

Question 31

What does CHK16 say about unreasonableness

Answer 31

that failure to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”