Consideration
58 As explained above, the sole ground of the applicant's application for review of the decision of the Assistant Minister is that set out in draft ground 3, namely, that it was unreasonable in a legal sense.
59 The doctrine of legal unreasonableness has received a deal of attention in Australian law since the decision of the High Court in Li, which was delivered in 2013.
60 In Li, the plurality (Hayne, Kiefel and Bell JJ), observed at [64]-[76]:
That a standard of reasonableness in the exercise of a discretionary power given by a statute had a long pedigree in the law.
For example in Sharpe v Wakefield [1891] AC 173, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. Their Honours said that that is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be exercised within the limit, "to which an honest man competent to the discharge of his office ought to confine himself".
That nonetheless, 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.
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 is being abused.
By reference to the Wednesbury unreasonableness standard, Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) "is not the starting point for the standard of reasonableness, nor should it be considered the end point". The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision.
The test of a decision being so unreasonable that no reasonable person could have arrived at it, "may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn, even where a particular error in reasoning cannot be identified".
Even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision is arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks "an evident and intelligible justification".
61 The Full Court of this Court, in Singh and Stretton has given close consideration to the circumstances in which a judge might, permissibly, find invalid an administrative decision on the basis of the legal unreasonableness standard.
62 Most recently, in SZVFW, a decision delivered on 8 August 2018, five members of the High Court had occasion to reflect on the nature of the doctrine of legal unreasonableness and the circumstances in which it may apply.
63 Rather than endeavour to harmonise the four separate judgments of the Court in SZVFW, it is both more convenient, not to say safer, to note the salient dicta of the members of the Court.
64 Chief Justice Kiefel (a member of the plurality in Li) made reference to Li, and at [10]-[12], observed as follows:
In Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification.
That may be so where a decision is one which no reasonable person could have arrived at.
However, an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.
Statements to the effect that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case.
But that dicta serves to highlight the fact that the test for unreasonableness is "necessarily stringent".
This is because the courts will not "lightly interfere" with the exercise of a statutory power involving an area of discretion.
Where it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the statute conferring discretionary power, the discretion has not been lawfully exercised.
65 Justice Gageler (who wrote a separate judgment in Li, concurring in the result), at [51]-[59], made the following statements about the nature of a legally unreasonable decision, which statements reflected much of his Honour's reasoning in Li:
Wednesbury unreasonableness was said by Brennan J in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21 to be consistent with the proposition that acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action.
The expression of the standard of legal reasonableness in these terms has the benefit of emphasising both the "extremely confined" scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words.
The nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin.
The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository.
It follows that the Court has no option but to determine in the exercise of its jurisdiction whether the impugned decision is unreasonable, or is materially affected by unreasonableness.
Nothing in Li, Singh or Stretton is inconsistent with this explanation of the nature of legal unreasonableness.
Except where permitted by statute, a judge undertaking judicial review of administrative action would depart from performance of the judicial function and impermissibly enter the zone of discretion committed to the administrator were the judge to be drawn into forming his or her own conclusion as to whether the administrator had exercised power in a manner which, though lawful, might be characterised as an abuse.
Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. There are no "talismanic" words that can avoid the process of judgment.
66 Justices Nettle and Gordon, in a joint judgment said, at [78]-[89]:
By reference to Li, the task of the Court where it has been alleged that a decision is legally unreasonable is to ask whether the exercise of the power by the decision-maker is beyond power because it was legally unreasonable.
That task requires the Court to assess the quality of the administrative decision, by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
The Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker.
The question with which the legal standard of reasonableness is concerned "is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power". That question is critical to an understanding of the task for a court on review.
How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome.
Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or what might be described as an irrational, if not bizarre decision; or a decision that is so unreasonable that no reasonable person could arrive at it. A conclusion of legal unreasonableness may be "outcome focused".
Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the Court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: "namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances". In that situation, the Court is not undertaking merits review. Rather, the Court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.
Legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence.
The standard of reasonableness is derived from the applicable statute but also from the general law.
There is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word.
That is, when something is to be done within the discretion of the decision-maker, it is to be done according to the rule of reason and justice; it is to be done according to law.
67 Justice Edelman, at [131]-[135], stated:
The reasonableness constraint that usually applies to the exercise by an administrator of a statutory power is generally based upon a statutory implication.
The implication of reasonableness is not unique to statutes and may apply to the exercise of general powers in trust deeds or will trusts and in contract.
The precise content of the implied duty of reasonableness will also depend on the circumstances.
The precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute.
The important matter of context in relation to the statutory implication is the legal tradition in which many statutes conferring administrative powers have been enacted. A strong part of that tradition has been the common description of unreasonableness in the terms of "patent" unreasonableness. One reason for this description may be that the consequence of a finding of unreasonableness is that the decision by the body entrusted by Parliament will be beyond power and unlawful. The strong terms of the common description of unreasonableness may be based upon an assumption that Parliament did not manifest an intention that such a conclusion be lightly reached.
There are, however, not two or more tests of unreasonableness, but only one. Its content, however, is assessed in the light of the terms, scope, purpose and object of the statute.
68 The submission made on behalf of the applicant is that in the Assistant Minister's final consideration of the question whether he should revoke the original decision cancelling the visa, an important consideration - that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal - was not one of the factors that the Assistant Minister overtly weighed before deciding to not revoke the original decision cancelling the visa.
69 In my view, there is merit in this submission and it is not answered by the submission made on behalf of the Minister that, if one fairly reads what the Assistant Minister said in his reasons at [90]-[94], it was referred to or sufficiently referred to.
70 The significant aspects of the Assistant Minister's reasons that lead to me to the conclusion that he did not have any or any proper regard to the indefinite detention finding, as a result of which the decision he made to not revoke the original decision was unreasonable, are as follows.
71 First, [27] of the Assistant Minister's reasons must be noted again. It states:
In support of his request for revocation Mr SACH submitted a report dated 17 February 2017 from a Medical Officer at Acacia Prison, regarding his medical condition and his fitness to fly. The Medical Officer states that Mr SACH has refractory epilepsy, was a poor candidate to fly, and has no carers in the UK, thus placing him in a complex situation to be able to manage himself, on his own, with recurrent uncontrolled seizures. He was of the view that a specialist opinion would be required to determine his fitness to travel. I have also taken into consideration the departmental assessment of the primary health nurse from International Health and Medical Services (IMS) who has assessed Mr SACH is not fit to travel.
72 Of importance is the Assistant Minister's clear finding that Mr Sach was "not fit to travel", while the Assistant Minister was relying on a departmental assessment in that regard, and had been provided with all the relevant health assessment materials, he was not disputing that assessment but plainly adopting it.
73 Then, in fact, at [28] of his reasons, the Assistant Minister set out, in a summary form, from the health assessment materials he had been given, the various physical and mental health conditions that Mr Sach, the applicant, suffers. This paragraph is set out above, at [28], in full.
74 At [29] of his reasons, the Assistant Minister further acknowledged as follows:
I acknowledge that Mr SACH has the following treatments: Ongoing appointments with Life Resolutions, ongoing GP follow-up for physical health issues and ongoing Neurology reviews, including pending EEG (test to detect electrical activity in the brain) and pending sleep study and I have taken this into consideration.
75 The pending EEG test to detect electrical activity in the brain is there referred to. In the supporting health assessment materials that underpin [27] and [28] of the reasons, that is identified as one of the uncompleted tests that affect the immediate capacity of the applicant to travel.
76 At [30]-[33] of his reasons, the Assistant Minister dealt with the question of what health support, amongst other things, would be available to the applicant in the UK, noting that comparable standards of healthcare, education, income and social welfare support would be available to the applicant in the UK.
77 As [33], the Assistant Minister also recognised that non-revocation of the cancellation decision would involve substantial hardship for him, particularly having regard to the length of time he had spent in Australia and his mental and physical health issues and the time it would take to establish linkages to the UK health network and establish rapport with various health practitioners.
78 Then, at [34], the Assistant Minister expressly stated:
In considering Mr SACH's revocation request, I am mindful that his health concerns may prove a significant impediment to his removal. In addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal.
79 The Assistant Minister thereby expressly accepted that non-revocation may result in prolonged detention of the applicant in Australia, including the possibility of indefinite detention should his condition permanently prevent his removal.
80 In my opinion, nowhere in the reasons subsequently, or in [34], is any evaluation made by the Assistant Minister as to the relevance of the possibility of indefinite detention to the question whether the original visa cancellation decision should be revoked.
81 While the Minister points to the general language used in [87] and following of the reasons, I do not consider that such an obviously important consideration - the possibility of indefinite detention - can be taken, on the terms of the Assistant Minister's reasons, to have been given any or any proper consideration in the critical weighing process that was ultimately carried out by the Assistant Minister in those paragraphs.
82 In [87]-[95] of the reasons, the Assistant Minister stated:
87. I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original mandatory cancellation decision (original decision) should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr SACH.
88. I concluded Mr SACH has made representations in accordance with the invitation.
89. I am not satisfied that Mr SACH passes the character test (as defined by s501).
90. In considering, in light of Mr SACH's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the protection of the Australian community from criminal conduct committed by Mr SACH which is of a violent nature.
91. In addition, I have considered the length of time Mr SACH has made a positive contribution to the Australian community during his 43 years in Australia and the consequences of non-revocation of the original decision for his family members.
92. Further, I find that the Australian community could be exposed to significant harm should Mr SACH reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SACH.
93. I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr SACH, than I otherwise would, because he has lived in Australia for most of his life, and from the very young age of seven.
94. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr SACH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the other considerations as described above. These include his lengthy residence and bonds to Australia, the hardship that he will suffer if returned to the United Kingdom after a period of 43 years in Australia, and the hardship his family will endure in the event the original decision is not revoked.
95. Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr SACH's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr SACH's a Class BF transitional (permanent) visa remains cancelled.
83 In my view, other important considerations that the Assistant Minister had previously discussed, including the failure of the applicant to pass the character test by reason of his criminal conduct and sentencing, the protection of the Australian community from his criminal conduct of a "violent nature", the length of the time he had made a positive contribution during his 43 years in Australia, "and the consequences of non-revocation of the original decision for his family members", were considered at [89]-[91].
84 At [92], the Assistant Minister found that the Australian community could be exposed to significant harm should the applicant reoffend in a similar fashion. That was another factor that he had dealt with earlier, for example at [84]-[86] of his reasons.
85 The question of the harm that might be inflicted on the Australian community was addressed, but the Assistant Minister, at [94], ultimately concluded that the applicant represented an "unacceptable risk of harm" to the Australian community and that the protection of the Australian community outweighed the "other considerations as described above".
86 The Assistant Minister added, at [94], that these included the residence and bonds to Australia, the hardship that the applicant will suffer if returned to the UK after a period of 43 years in Australia, and the hardship his family will endure in the event the original decision is not revoked.
87 However, the Assistant Minister did not, at any point, address the question of prolonged detention, including the possibility of indefinite detention in Australia of the applicant should the original decision not be revoked and why, having regard to that consideration, he was of the opinion that it remained appropriate to not revoke the original decision.
88 I do not accept the Minister's submission that the words in [94], "as described above", are sufficient to indicate, on a fair reading of the Assistant Minister's reasons, that the Assistant Minister in fact took into account the acceptance of the possibility of indefinite detention that he had expressly noted at [34] of his reasons. In my view, on a fair reading of the Assistant Minister's reasons, that possibility had been overlooked in the final weighing of considerations.
89 If that consideration had been taken into account at the weighing stage, it is plain that the Assistant Minister may well have arrived at a completely different decision. At the very least, the Assistant Minister would have had to take the trouble to explain why, notwithstanding the possibility of indefinite detention should he not revoke the original decision to cancel the visa, it was appropriate to not revoke the original decision having regard, in particular, to all of the other circumstances personal to the applicant outlined in his reasons.
90 For these reasons, I consider that the Assistant Minister's decision was unreasonable in a legal sense, as discussed in the various judgments in Li and in SZVFW. In particular, having accepted that the applicant's health circumstances may prevent him from travelling to the UK with the result that his indefinite detention in Australia was a possibility, the Assistant Minister ignored an important consideration he himself had noted. It matters not what language one uses to describe this decision - irrational; lacking an evident and intelligible justification; or because the result of the decision-making is not reasonable, on the basis that it could not have been reached if proper reasoning had been applied - the result is the same. The decision was unreasonable.