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High Court decision on judicial review for legal unreasonableness

• 29 August 2018 • 4 min read
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A High Court decision on judicial review for legal unreasonableness highlights courts need to determine whether statutory power is exercised reasonably

In the recent decision in Minister for Immigration and Border Protection v SZVFW, the High Court allowed an appeal from a decision of the Full Federal Court, reiterating the role of appellate courts reviewing decisions concerning legal unreasonableness, to determine for themselves whether the relevant statutory power was exercised reasonably, and confirming the principles developed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 as to the test for unreasonableness.

Facts and procedural history

SZVFW (a pseudonym) and his wife (the applicants), after being refused protection visas, applied for review of the refusal decision by the Refugee Review Tribunal (RRT). While the Tribunal wrote to the applicants to invite them to attend a hearing of their review, they did not do so.

The applicants had similarly failed to attend an interview with the Minister’s delegate on the delegate’s initial consideration of their applications and they had failed to provide any submissions or other written material in support of their applications when invited to do so by the RRT. The RRT consequently exercised its discretion, under section 426A of the Migration Act 1958 (Cth) (Migration Act), to make a decision on the review without taking any further action to allow the applicants to appear before it.

The decision of the RRT was subsequently overturned on appeal by the Federal Circuit Court, on the basis that the RRT’s decision not to take further action to contact the applicants was unreasonable, in circumstances where no attempt was made to contact them by mobile phone or email (all communications having been sent to their postal address). The Federal Circuit Court decision was subsequently upheld by the Full Court of the Federal Court, on the basis that the Minister was required to demonstrate error of the kind needed when seeking to overturn a judicial decision involving discretion, and such error had not been demonstrated.


The High Court overturned the Full Court’s decision. In doing so, it reiterated a number of important concepts.

Firstly, the RRT’s discretion to proceed to make a decision pursuant to section 426A of the Migration Act, is subject to the presumption of the law that the legislature intends discretionary powers to be exercised reasonably.

Second, the role of the appellate court, in undertaking an appeal by way of rehearing, was to reach its own conclusion as to whether the decision was unreasonable, not to decide whether there was ‘appealable error’, in the sense applicable to the determination of an appeal from a judgment founded upon the exercise of a discretion, such as assessing general damages for personal injury. As the question whether the decision of the RRT was legally reasonable can only have one right answer (the decision was, or was not, reasonable as alleged), the appeal was concerned with the correctness of the primary judgment.

Third, the Court affirmed the principles developed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 as to the test for unreasonableness (discussed below) and, on that basis, found that the decision of the RRT was ‘perfectly explicable given the history of the respondents’ non-responsiveness’.


While there is no single test or settled categories for assessing whether a decision is legally unreasonable, there are several guiding principles that are relevant to such an assessment. They are:

  1. The test for unreasonableness is stringent and the courts will not lightly interfere with the exercise of a statutory power involving a discretion.
  2. Nevertheless, a decision-maker will be found to have abused their statutory power if their decision lacks an evident and intelligible justification or if their decision does not fall within a range of possible outcomes which are defensible rearding the facts and the law. Necessarily, determining whether this is the case will be heavily dependent on the facts and statutory context of each individual case.
  3. The circumstances in which a finding of unreasonableness may be made are ‘not closed or limited by particular categories of conduct, process or outcome’, however there are some accepted categories of unreasonableness. These include circumstances where:
    1. a decision is one which no reasonable person could have arrived at
    2. a decision is irrational or illogical
    3. a decision-maker has failed to give adequate weight to factor of great importance, or has given excessive weight to an irrelevant factor of no great importance
    4. a decision is plainly unjust, arbitrary, capricious and
    5. a decision does not relate intelligibly to the purpose of the statutory power being exercised

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