Judicial Review and Deference: Australian Administrative Law Analysis

This essay delves into the realm of judicial review within the Australian legal framework, specifically addressing the degree to which judges should defer to administrative decision-makers. It begins by establishing the role of judicial review as a safeguard against legal errors made by the executive branch. The essay then examines the concept of legal unreasonableness, tracing its evolution through key cases like Minister v Li and Minister v Stretton. It explores how the courts approach the review of administrative decisions, particularly those involving procedural fairness and the exercise of discretion. The analysis highlights the courts' reluctance to overturn substantive decisions within the decision-maker's authority, emphasizing the importance of the 'decisional freedom' available to the Minister. The essay references relevant legal precedents and the principles governing the assessment of legal unreasonableness, concluding that legal unreasonableness has gained traction as a ground for judicial review, particularly concerning procedural matters. The essay also presents a bibliography of relevant legal resources.

Traditionally the grounds for legal unreasonableness were available only in case of a conclusion
that was "so unreasonable that such decision will not be considered to be imposed by any
reasonable authority". It was considered as an exceptional ground, which was not easy to satisfy.
However, the ground of unreasonableness was extended as a result of the verdict of the majority
of High Court given Minister v Li. The result is that it is no longer considered as the basis that is
going to be effective only in extraordinary conditions. Instead, unreasonableness has become a
conclusion that can be applied in case of a decision that does not have an intelligible and obvious
explanation". In view of the verdict given in Minister v Stretton,1 it becomes clear that the basis
of legal unreasonableness had some level of traction in questioning the decisions that were
procedural in nature. However, it also needs to be stated in this regard that still the courts are
reluctant in vitiating the substantive decisions that can be "stated to be falling within the
authority of decision-maker to make". This was the conclusion on which Griffiths J had arrived
that while delivering the judgment in Minister v Stretton (2016).2
Before proceeding further, it will be helpful to briefly discuss the facts of Stretton. Therefore, it
needs to be stated that Mr. Stretton took birth in 1954 in England. Later on in 1961 he shifted
along with his family to Australia. In 2009, sexual offenses were committed by Mr. Stretton,
against his granddaughter. The result was that he was imprisoned for two years. At the same
time, the statutory discretion was exercised by the Minister for canceling the visa of Mr. Stretton.
This was done by the minister after the considered the submissions made by Mr. Stretton against
the cancellation of visa. Among the submissions, it was mentioned that it was going to be
1 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
2 ibid

detrimental for the psychological health of Mr. Stretton's daughter if her father had to return back
to England because the daughter was suffering from depression.
In this regard, it was mentioned by Logan J. that the conclusion of the Minister for canceling the
visa has to be described as unreasonable. The finding of the court was that Minister has "taken a
sledgehammer for crack a nut". Therefore the court stated that the conclusion was surplus than
required for the purpose that was served by it. But on the appeal before the Full Court, the
verdict was given that the decision of the Minister cannot be described as unreasonable. The Full
Federal Court laid stress on the fact that the role of the court was not to conduct a review of the
merits of the case. Therefore the court stated that the minister had the capability for canceling
visa.
In this regard, it was stated by Griffiths J. that "intensity of standard related with reasonableness
is going to be higher in the case involving the review of the exercise of discretion that is
procedural in nature".
Another element case in this regard is that of Minister v Eden.3 As in Stretton, in this case, it was
revealed that the visa holders who are going to challenge the personal decision made by the
Minister for canceling the visa on the ground that the cancellation can be described as
"disproportionate" under the circumstances are going to face a very difficult battle.4 The notion
of legal unreasonableness can be described as meaning that in view of the "terms, scope and
purpose of the relevant statutory power", the verdict can be simply described as "unjust,
irrational, arbitrary and lacking in evident or intelligible justification". Therefore, in other words,
3 Minister for Immigration and Border Protection v Eden (2016) FCAFC
4 House v The King [1936] HCA 4

the decision should be obviously disproportionate so that the result of the case can be described
as falling within the range of lawful outcomes".
It can be stated in this regard that the notion of unreasonableness is related with the lawful use of
authority or duty. On the other hand, the responsibility of the court in deciding if a conclusion is
vitiated on account of legal unreasonableness is strictly supervisory in nature.5 Therefore this
responsibility does not require that the court should be involved in the review of merits of the
decision in the garb of evaluating the reasonableness of the decision or the court substituting its
own view regarding the way, such discretion needs to be used with the views of the person
making the decision.6
For the purpose of identifying or defining the limits of the zone of decisional freedom, it is
required that the pertinent law should be constituted. In case there are causes present for a
decision, the reasons should provide a focus for evaluation if the decision can be described as
legally unreasonable.7 If an evident and intelligible justification is present for the decision, then
in most of the cases, but not in all cases, the decision cannot be described as legally
unreasonable.8
The issue of evaluating if a decision is legally unreasonable should be approached by applying
particular definitions, verbal descriptions or categorizations.9 It can also be of some help to
consider the descriptive expressions used in earlier cases for describing the qualities of the
decision, exceeding the boundaries and limits of a statutory power.10
5 Shrimpton v The Commonwealth [1945] HCA 4
6 Australian Broadcasting Tribunal v Bond [1990] HCA 33
7 McCloy v New South Wales [2015] HCA 34
8 Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59
9 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
10 Minister for Immigration and Border Protection v SZVWF [2018] HCA 30

As a result of the application of the above-mentioned principles, the verdict of the Full Federal
Court was that the presence of the primary judge (i) did not acknowledge the area of 'decisional
freedom' available to the Minister. At the same time, it also failed to. Evaluate if the decision
falls within that area, keeping in view the facts of the case and subject matter as well as the
purpose and scope of the Migration Act.11
Under the circumstances, it can be stated that legal unreasonableness has found momentum as
the ground for judicial review after is given in Li.12 Therefore it can be stated that legal
unreasonableness is not any more the basis that is going to succeed only in case of extraordinary
situations. The case of Minister v Stretton reveals that the courts will be more prepared to find
legal unreasonableness regarding the exercise of will that is of procedural nature instead of a
substantial decision. In Li, it was mentioned by Gegeler J. that as is the case with procedural
fairness, to which it is linked closely, reasonableness cannot be implied as a condition regarding
validity if it is not consistent with the terms in which authority or responsibility has been given
or if it is not consistent otherwise with the nature or the legislative context in which such
authority or responsibility has been granted.
Therefore, as is the case with procedural fairness, even if the person making the conclusion has
complied with the legislative framework still there is possibility that the court may discover error
on the basis of legal unreasonableness.
11 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
12 Minister for Immigration and Citizenship v Li [2013] HCA 18

Bibliography
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59
House v The King [1936] HCA 4
McCloy v New South Wales [2015] HCA 34
Minister for Immigration and Border Protection v Eden (2016) FCAFC
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v SZVWF [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Shrimpton v The Commonwealth [1945] HCA 4