THE PRINCIPLES UNDERLYING LEGAL UNREASONABLENESS
43 The conditioning of a power such as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li 297 ALR 225; [2013] HCA 18, particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J; Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [40] per Gaudron and Gummow JJ; Li 297 ALR 225; [2013] HCA 18 at [88]-[92] per Gageler J. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication.
44 In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
"It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason": Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
45 In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
46 There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal. In the present appeal, some of the justifications put forward by the Minister for the Tribunal's refusal of the adjournment were not matters mentioned by the Tribunal in its reasons, such as the submission that the first respondent could have sat the IELTS tests up to two years before his visa application, the use by the first respondent of the word "hope" in his letter asking for an adjournment, the absence of reasons advanced by the first respondent as to why the first mark for his 1 December 2012 test was incorrect, the inferences that might be drawn from the first respondent's failure to obtain the requisite marks in several previous tests and the absence of factors outside the first respondent's control (by comparison with the facts in Li). None of these matters was relied on by the Tribunal in its reasons.
47 This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
48 The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as "intelligible justification" must involve scrutiny of the factual circumstances in which the power comes to be exercised.
49 In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li 297 ALR 225; [2013] HCA 18 at [10], in these tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li at [80] the position of the tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. It might be said there is a different kind of balancing required as between the statute's exhortation to the tribunals to discharge their functions in ways which are "fair, just, economical, informal and quick" (see ss 353(1), 420(1)), and "according to substantial justice and the merits of the case" (ss 353(2), 420(2)), and the interests of individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual applicant or application: Li 297 ALR 225 at [93] per Gageler J; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [49] per Gleeson CJ and McHugh J; Li 297 ALR 225; [2013] HCA 18 at [15] per French CJ, at [52] per Hayne, Kiefel and Bell JJ), and the manner in which these tribunals are required to perform their functions and exercise their powers:
That context makes clear that it [s 353] cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
(Li 297 ALR 225; [2013] HCA 18 at [14] per French CJ.)
50 A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J's comments in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
51 In the Act, this interaction is best reflected by the scope and purpose of s 360 (s 425 in respect of the Refugee Review Tribunal), which requires the Tribunal to give an applicant a meaningful opportunity - a "real chance" - to appear and present evidence and argument. What is a meaningful opportunity, or a real chance, will be fact dependent in each case. However it is not difficult to see the overlap between the obligation in s 360 and the exercise of the adjournment discretion in s 363. Although the plurality judgment in Li ultimately did not rely on a contravention of s 360, it recognised the central place of that provision in the Tribunal's function: see Li 297 ALR 225; [2013] HCA 18 at [60]-[62].
52 The language of s 363 ties the exercise of the adjournment power to "the purposes of the review". This in turn necessitates reference back to the nature and content of the review established by Pt 5. In exercising its discretion for the purposes of the review the Tribunal must be cognisant of the requirements of provisions such as s 360 and of its function under ss 348 and 349 to make the correct or preferable decision on the review.