Consideration and determination
37 The appeal turns on the question whether the primary judge correctly understood and applied in the particular circumstances of this case the principles concerning judicial review of a statutory discretion for unreasonableness in the legal sense discussed in cases such as Li, Singh and Stretton.
38 The following general principles may be extracted from the three leading authorities referred to immediately above (further general guidance is provided by the Full Court's decision in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158):
• there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
• nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
• the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
• the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
• in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
• legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
• the concept of legal unreasonableness can be "outcome focused", such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
• where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).
39 It is not suggested that this summary is exhaustive. As has been emphasised, the proper elucidation and explanation of concepts of jurisdictional error and legal unreasonableness "does not depend on definitional formulae or on one verbal description rather than other" (Stretton at [2] per Allsop CJ and at [62] per Griffiths J). These statements of general principle provide guidance to the often difficult task of determining whether or not the exercise of a discretionary power involves legal unreasonableness. As Allsop CJ emphasised in Stretton at [2], it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as "arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other". Rather, such concepts are expressed as "abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts" (Stretton at [3] per Allsop CJ).
40 It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings (see Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-210 per Windeyer J and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ).
41 It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Branir) at [21] in such a case there is a "need to show error on appeal". It is desirable to set out in full that paragraph from his Honour's judgment (noting that Drummond and Mansfield JJ agreed with it):
However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.
42 The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in Mesa Minerals Limited v Mighty River International Limited [2016] FCAFC 16; 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J's observations in Branir):
In effect, Mesa sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. The Court's task is to correct error. The determination of the question of whether Mighty River was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The primary judge's decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; at [25] per Allsop J (as his Honour then was), Mansfield and Drummond JJ agreeing. As Allsop J went on to explain at [30]:
The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without 'essaying the necessary task of positively demonstrating that the trial judge was wrong' … It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.
43 The application of these principles to the circumstances of the appeal here invites the following observations. First, to succeed in the appeal the Minister must establish an appealable error on the part of the primary judge, whether that error be of fact or law. It is insufficient simply to invite the Court, in effect, to step into the shoes of the primary judge and determine for itself whether it views the Tribunal's exercise of the discretion under s 426A as unreasonable in the legal sense.
44 Secondly, we consider that the primary judge's finding that the Tribunal's decision under s 426A was unreasonable in the legal sense was fundamentally a decision which turned on her Honour's evaluative judgment. That is because the primary judge was required to identify all the relevant particular circumstances of the matter, in the light of the relevant general principles of law, and to evaluate those circumstances with a view to determining whether or not the exercise of the Tribunal's discretion was unreasonable in the legal sense. This evaluative exercise necessarily involved the primary judge determining what weight she should give to individual relevant circumstances.
45 As is evident from the summary of the Minister's submissions above, many of the Minister's complaints concerning the primary judge's decision were expressed in terms of excessive or inadequate weight being given to particular matters which her Honour viewed as forming part of the bundle of relevant circumstances which had to be considered by the Tribunal in deciding whether or not to exercise its discretion under s 426A of the Act. In that sense, therefore, we consider that, by broad analogy, helpful guidance can be obtained from well-known authorities which emphasise the need for caution by an appellate court which is asked to disturb the outcome of a discretionary judgment, where evaluative issues are also necessarily involved. That approach is reflected in Latham CJ's judgment in Lovell v Lovell 1950 HCA 52; 81 CLR 513 at [519] (footnotes omitted):
In Storie v. Storie it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal. In Blunt v. Blunt Viscount Simon L.C. quotes from Charles Osenton & Co. v. Johnson the following passage: - "The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way" - as well as the passage relating to giving no sufficient weight to relevant considerations.
46 Lest there be any misunderstanding, we are not suggesting that the primary judge's decision was a discretionary judgment. Rather, we are emphasising the fact that the judgment on the legal unreasonableness ground was largely an evaluative one.
47 In the light of these general observations, we now turn to consider each of the matters raised by the Minister in challenging this aspect of the primary judge's decision. Those matters are summarised in [28] above.
48 First, we are not satisfied that appealable error has been demonstrated in relation to the weight which the primary judge gave to the proposition that the Tribunal could not have been satisfied on the evidence before it that the applicants were, in a practical sense, aware of the hearing date and time (see [75] of the primary judge's reasons for judgment). We do not see any inconsistency between this and the deeming effect of s 441C. The critical point is that her Honour made clear that her decision did not depend upon the operation of the deeming provision in s 441C. That is because, as her Honour made clear in [47] to [51], she found that the evidence that the requirements of s 441A(4) were met so as to enliven the operation of s 441C was "not entirely satisfactory".
49 Furthermore, we see no appealable error in her Honour's finding that part of the relevant circumstances in determining legal unreasonableness was the fact that there was no evidence of any attempts to contact the husband and wife by email or telephone notwithstanding that appropriate contact details had been provided.
50 We also consider that the Minister's reliance on Solarex is, with respect, misguided. The case below was conducted on the basis that, even if the invitation letter had in fact been delivered to the respondents' residential address, they were unaware of its contents as at the date of the Tribunal's hearing (see [22] above). Accordingly, the operation of the common law presumption concerning receipt of articles sent by ordinary post adds nothing.
51 Secondly, no appealable error is demonstrated in respect of the primary judge's failure to include among the bundle of relevant circumstances the fact that the husband and wife had not attended an interview before the delegate despite being invited to do so. A one-off event such as this scarcely constitutes "a pattern of conduct".
52 Thirdly, the same may be said in respect of the Minister's contention that the primary judge should have given more weight to the fact that, while the hearing invitation to appear before the Tribunal was of great significance to the respondents, so was the hearing before the delegate, yet they did not attend that interview either. There was no explanation in the evidence as to why the respondents did not attend the interview before the delegate. We discern no appealable error in respect of the weight accorded by the primary judge to the significance of the Tribunal's invitation at [79] of her Honour's reasons for judgment.
53 Fourthly, we do not accept the Minister's submission that the effect of the primary judge's decision is to impose an obligation on the Tribunal to seek to communicate with review applicants by email or telephone where they fail to attend in response to an invitation issued pursuant to s 425. On the contrary, her Honour clearly appreciated that there was no such general obligation, as is made clear in [66] of the reasons for judgment and her Honour's reference therein to SZFCH at [39]. The primary judge's analysis turned very much on her evaluation of the relevant circumstances in this particular case.
54 Furthermore, no appealable error has been established because the primary judge did not include among the bundle of relevant considerations the fact that the husband had stated on the original visa application that he did not agree to the Department communicating with him by fax, email or other electronic means. That statement was limited to communications from the Department. It said nothing about the receipt of communications from the Tribunal during the subsequent review process.
55 Fifthly, we reject the Minister's submission that the primary judge fell into appealable error by her reliance upon Kaur because that decision is said to be distinguishable. We shall say something further below about the danger of approaching the question of unreasonableness in a legal sense with undue emphasis upon other cases. The primary judge correctly acknowledged at [64] that the facts in Kaur are not on all fours with the facts of this case. Moreover, even though an important consideration in Kaur was the fact that the applicant's failure in that case to appear at the Tribunal hearing was out of character having regard to past events which involved the applicant taking a very active role over some period of leading up to the Tribunal's hearing, it is wrong to suggest that this circumstance must always exist for there to be a legally unreasonable exercise of the discretion under s 426A. Such a rigid approach, which effectively invites a "tick-the-box" exercise, is flatly inconsistent with the general principles outlined in [38] above. The Minister's submission concerning Malecaj should be rejected for the same reason, and also because that particular decision was not even referred to by the primary judge.
56 Sixthly, similar observations apply to the Minister's submissions concerning AZAFB. We do not accept that that decision stands for the proposition that the Tribunal must always search its records for an alternative way of contacting an absent review applicant. That case turned very much on its own facts. In any event, it is notable that the primary judge made no reference to that decision in her reasons for judgment. Nor did she need to do so. As we have emphasised, the task of determining whether or not a discretion has been exercised unreasonably in the legal sense requires a judge exercising judicial review jurisdiction to give careful consideration to the relevant circumstances of the particular case, as opposed to an approach which places at the forefront of the exercise a detailed comparison between the facts and circumstances of the particular case with other precedents.
57 The danger with an approach which places undue emphasis on the analysis and outcome of other first instance cases which raise unreasonableness in the legal sense, and comparing the presence or absence of particular circumstances in those cases with the case at hand, is that sight may be lost of the relevant general and overarching principles. It is apposite to recall what McHugh JA said in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248:
In Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid warned of the danger of placing reliance on the literal words of particular judgments instead of searching for the applicable principle. His Lordship said:
… experience has shown that those who have to apply the decision of other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive.