Ground One
21 The first ground was presented in two alternative ways. It was said that the decision was either illogical or irrational in the sense described by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, or was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Either way, there was no dispute as to the applicable law.
22 In SZMDS, the test for illogicality was said by the applicant to have been articulated by Crennan and Bell JJ at [131] as follows:
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
23 In Li, the test for legal unreasonableness was said by the applicant to be expressed by Hayne, Kiefel and Bell JJ at [72] as follows:
Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Their Honours also said at [66]:
This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
(Footnotes omitted)
French CJ observed at [30]:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu [(1999) 197 CLR 611] that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote:
"The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed."
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
(Footnotes omitted)
24 The last paragraph in the above passage is important. A distinction should be drawn between irrational or arbitrary reasoning and mistaken or incorrect reasoning. What the law permits, and what it strikes down, falls to be determined by the correct delimitation of the boundaries of decisional freedom and legal reasonableness. Those boundaries are ascertained in each case from a correct analysis of the language of the provision conferring the power or the discretion in question, together with the applicable statutory context and purpose. As Hayne, Kiefel and Bell JJ said in Li at [67]:
In Klein v Domus Pty Ltd [(1963) 109 CLR 467 at 473], Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355], requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
(Footnotes omitted)
25 In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Federal Court articulated seven propositions concerning the test for legal unreasonableness. The sixth and seventh were in these terms (at [64] - [65]):
Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh [(2014) 231 FCR 437] at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li [(2013) 249 CLR 332] at [76] (Hayne, Kiefel and Bell JJ); Stretton [(2016) 237 FCR 1] at [13] (Allsop CJ).
Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
But the Court also said the following at [59]:
…the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
(My emphasis)
26 There may be, in my view, difficulties in labelling a course of reasoning, or a resultant decision, as irrational or illogical, or as lacking an evident and intelligible justification or as being obviously disproportionate. All of these words, arguably, denote an expression of severe or strong disagreement with a given course of reasoning or particular decision. Yet mere disagreement, however strong, with the merits of reasoning deployed or with an impugned decision, does not justify curial intervention; the Court's task is "strictly supervisory".
27 What justifies curial intervention in the case of an allegation of illogicality or irrationality is whether the impugned decision is one which no rational or logical decision maker could make on the same evidence: SZMDS at [130].
28 What justifies curial intervention in the case of an allegation of legal unreasonableness is whether the decision falls outside the boundaries of decisional freedom as determined by a correct construction of the provision in question.
29 Doubtless, the two tests may, practically speaking, overlap. Each is the product of a similar approach to statutory construction. As Gageler J observed in Li at [90]:
Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.
(Footnotes omitted)
The occasion for any intervention in either case should be rare. As Gageler J also observed in Li at [113]:
Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.
30 Counsel for the applicant submitted that the Minister's ostensible failure to consider the applicant's health went to two aspects of the exercise of power under s 501CA(4)(b)(ii): it went to the possibility of re-offending and the ongoing risk of re-offending. In that respect, the applicant placed reliance upon the sixth and seventh propositions from Eden, supra, upon the fact that since Li, the decision of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is neither the starting point nor the end point here (Li at [68]), and upon the last sentence of [76] of Li which states as follows:
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification
31 In my view, the language of s 501CA(4)(b)(ii), together with its statutory context, suggest that the boundaries of decisional freedom here are wide. There are, in that respect, and for this purpose, relevant similarities with the power in s 501(2) of the Act, which was described in Eden in these terms at [19]:
…there are a number of indicators that suggest that the Minister's discretion under s 501(2) is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense. The indicators include, but are not necessarily limited to, the following: the absence of an express list of considerations to be taken into account; the broad statement of the object of the Act in s 4(1) as being to "regulate, in the national interest, the coming into and presence in, Australia of non-citizens"; the fact that the discretion is conferred upon the Minister who holds political office and is accountable to Parliament; the fact that a decision under s 501(2) which is made by the Minister personally is not subject to merits review; and the fact that the Minister is obliged by s 501G(1)(e) of the Act to provide a written statement of reasons.
32 Each of the factors listed in this passage are present in the case of s 501CA(4)(b)(ii). They also support the existence of a broad power. I would add a further consideration, namely that the power is of a relieving or dispensing kind which is expressed in a most unconfined way. The test to be applied is not tied, unlike s 501(2), to a reasonable suspicion that a person does not pass the character test or to the Minister's satisfaction that the character test has or has not been passed. Rather, the test in s 501CA(4)(b)(ii) is premised upon the act of cancellation under s 501(3A) having taken place, and the issue of the application of the character test is relevantly addressed elsewhere, namely in s 501CA(4)(b)(i). It follows, that the area of decisional freedom should be at least as large as that applying under s 501(2), if not much larger.
33 Here, and with respect to counsel for the applicant, whether the matter be judged from the standards of illogicality, or legal unreasonableness, I am not satisfied that the Minister's ostensible failure to consider the applicant's health in the way suggested in assessing the risk of re-offending involved a jurisdictional error of law. Instead, and with respect, criticising the Minister for failing to consider the applicant's poor health for the purposes of evaluating that risk, is a criticism of the merits as to how the Minister assessed that risk. In that respect the following passage from Eden at [69] is apt:
The difficulty is that, if the Minister's view was open on the facts, it was not for the primary judge to effectively overturn that finding, and replace it with his own finding, in evaluating the reasonableness of the Minister's decision. It is difficult to see how the Minister's decision could be said to be legally unreasonable if it was based on findings, including essentially subjective findings concerning the seriousness of offending behaviour, which were open on the facts and therefore could not be described as irrational or illogical.
34 In my view, the effect of the applicant's submission here was to invite me to overturn the Ministers findings concerning the risk of re-offending, simpliciter. However, at best, the Minister's reasoning was only mistaken or incorrect; it was not illogical and it fell within the boundaries of decisional freedom.
35 In that respect, it is not disputed that the Minister took into account the applicant's poor health; it was expressly considered for the purposes of assessing the risk of indefinite detention. Moreover, if it matters, there was material before the Minister submitted on behalf of the applicant which supported the presence of a risk that the applicant would re-offend, even in the face of his medical difficulties. In the letter written by Victoria Legal Aid to the Department of Immigration and Citizenship on 20 July 2012 in support of the proposition that the applicant's visa should not be cancelled, the author of that document stated:
[The applicant] suffers from alcoholism, an alcohol-related brain injury and from chronic obstructive pulmonary disease. His borderline level of intellectual functioning, attributable to his brain injury, severely limit his ability to plan and organise his daily life in Australia. He suffers from severe memory deficits which include the loss of memory about events in his recent past. He would be at severe risk of coming to significant harm if he were to be deported to a country of which he has no memory and where he has no contacts or support.
Notwithstanding these serious medical problems, the author of this letter was of the view that there was a risk that the applicant would reoffend. The author stated:
It is acknowledged that [the applicant's] brain injury, personality style and general life circumstances and previous offending make it likely that [the applicant] will commit further criminal offences in future.
No material was advanced before the Minister which contradicted these propositions. Nor was it suggested in any material presented to the Minister that the applicant's medical condition had deteriorated so severely since the writing of this letter as to render it unreliable. In that respect, there was evidence before the Minister that whilst in detention, the applicant had recently behaved in an aggressive and abusive manner on a number of times. In these circumstances, I am not satisfied that there was "no logical connection between the evidence and the inferences or conclusions drawn" by the Minister in the sense that these words were used in SZMDS. I am also not satisfied that on the material before the Minister the decision he reached about the risk that the applicant would re-offend was "'plainly unjust', 'arbitrary', 'capricious', 'irrational', 'lacking in evident or intelligible justification', and 'obviously disproportionate'", in the sense that these words were used by the full Federal Court in Eden.