FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    The Minister appeals from the decision of the Federal Circuit Court of Australia (FCCA) in SZVFW v Minister for Immigration and Border Protection [2016] FCCA 2083. The FCCA held that it was unreasonable in the legal sense for the then Refugee Review Tribunal (the Tribunal) to proceed under s 426A of the Migration Act 1958 (Cth) (the Act) to make a decision on a review without taking any further action to allow or enable the first and second respondents to appear before it.

Summary of background matters

2    The respondents in this appeal are a family, comprising husband and wife and their son. They are all Chinese citizens. On 27 July 2012, the husband was granted a tourist visa to travel to Australia. He, his wife and their son arrived in Australia on 16 August 2012. The tourist visa expired on 16 November 2012 and, on 3 December 2013, the respondents applied to the Department of Immigration and Citizenship for protection visas. The primary claims for protection were those made by the husband. His claims related to events concerning the alleged compulsory acquisition of his farming land in China. He claimed that the village head had embezzled most of the compensation money for the land acquisition and that he had been offered grossly inadequate compensation. He said that he and his wife were then involved in protests against these matters and that, on one occasion, he was detained by the police and was beaten. He said that he was threatened with imprisonment if he continued to protest and that he and his wife were put under surveillance. They then decided to flee China.

3    The husband wrote on the protection visa application form that all written correspondence about the application should be sent to him. In that part of the application form under the heading “Details of applicant”, details were given of a residential and postal address in Roselands, New South Wales. The application stated that this was the only address at which the visa applicant had lived in Australia. It was also expressly stated that the visa applicant did not agree to the Department communicating with him by fax, email or other electronic means. A mobile telephone number was provided. Both the husband and wife expressly undertook in the application form to inform the Department if they intended to change their address for more than 14 days while the application was being considered.

4    The Department acknowledged receipt of the visa application by a letter dated 18 December 2013. The letter was addressed to the husband and was sent to the same address in Roselands. The evidence is unclear as to whether this letter was sent by ordinary, or registered, post. It was noted in the letter that because the letter “was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter”. The letter also stated that it was important that the Department be told “about any changes to your circumstances including your… address… as soon as possible” and that this had to be done in writing.

5    By a letter dated 3 March 2014, which was sent by registered post, the Department invited the husband and wife to an interview on 26 March 2014. This letter was addressed to the same Roselands address. It also contained the same statement that, as the letter was mailed to an Australian address from within Australia, the addressee (i.e. the husband) was taken to have received it seven (7) working days after the date of the letter. The letter contained the same information as the letter dated 18 December 2013 regarding the importance of telling the Department of any changes in circumstances, including address.

6    The husband and wife did not attend the interview. The delegate refused the application on 16 April 2014. A letter bearing that date, which informed the husband of the decision and attached the delegate’s reasons, was sent by registered post to the same Roselands address. The letter advised the respondents of their right to seek a review by the Tribunal of the delegate’s decision and the process for doing so. They were told that applications for review could be lodged online.

7    On 12 May 2014, the respondents lodged an online application for review by the Tribunal of the delegate’s decision. The Tribunal’s confirmation of receipt of that application recorded the same address in Roselands. The applicants’ application for review by the Tribunal also included a mobile phone number and an email address under the section of the form entitled “Details of person applying for review 1”. Under the heading “Correspondence details”, it specified that correspondence be sent to the husband and, again, the same Roselands address and email address were provided.

8    The Tribunal acknowledged receipt of the review application by letter dated 12 May 2014, which was addressed to the same Roselands address and to both the husband and wife. The letter said that it was important that they “tell the Tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address)” and if they did not, “you might not receive an invitation to a hearing or other important information and your case may be decided without further notice”.

9    By a further letter dated 15 August 2014, the Tribunal invited the husband and wife to appear before it on 10 September 2014, which letter was also addressed to the Roselands address. The letter stated inter alia that if there was no attendance at the scheduled hearing the Tribunal might make a decision without taking any further action to allow or enable them to appear before it. The letter was sent by ordinary, not registered, post. In it, the husband and wife were asked to read and complete an enclosed “Response to hearing invitation” form to confirm their attendance at the hearing.

10    No response was provided by the husband or wife to that invitation and they did not appear at the hearing or explain their absence. The Tribunal conducted its review on the papers. It concluded that it was not satisfied that the respondents were entitled to protection either as refugees or under the complementary protection criterion. The core of the Tribunal’s reasons for rejecting the claims for protection are reflected in the following extract from the Tribunal’s statement of decision and reasons:

[19]    … On the evidence provided, the Tribunal is not satisfied about significant aspects of the applicants’ circumstances including: further detail of the process by which the land was resumed and compensation offered; further detail of the protests the applicants participated in including whether they were lawful or unlawful; further detail as to the detention of [the husband] including whether he was charged with an offence; further detail of the surveillance that is claimed; and, further detail as to the harm feared by the applicants on their return to China.

11    It is evident from the wording of this extract that the Tribunal considered that it needed further detail as to some key aspects of the claims for protection.

12    The delegate’s decision was affirmed and the Tribunal provided brief reasons in support of its decision.

13    It is desirable to say something more about the Tribunal’s observations and findings relating to the invitation letter and the respondents’ failure to attend the Tribunal hearing. At [4] of its reasons, the Tribunal stated that the applicants had been invited by the Tribunal to appear before it on 18 March 2014 (sic) to give evidence and present arguments. This date is erroneous. The correct date (10 September 2014) is referred to later in the Tribunal’s reasons (at [16]). The Tribunal found at [4] that no response was provided to that invitation and the respondents did not appear before the Tribunal at the time and place scheduled, nor did they contact the Tribunal to inform it of any change in their contact details or any reason why they were unable to attend. It is desirable to set out [15]-[17] of the Tribunal’s decision record, because it encapsulates the Tribunal’s reasons for proceeding under s 426A notwithstanding the non-attendance of the respondents (emphasis added):

[15]    The delegate’s decision record, which the applicant provided to the Tribunal with his review application, indicates that the applicant was invited to attend a Department interview but did not attend or otherwise contact the Department. While the applicants sought this Tribunal’s review in respect of the delegate’s decision, he did not provide the Tribunal with any further documentation in support of his claims for Australia’s protection.

[16.    By letter dated 15 August 2014 the Tribunal invited the applicants to appear before it on 10 September 2014 to give evidence and present arguments. That letter was sent to the applicants’ last identified address for correspondence and noted that if the applicants did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear. The applicants did not respond to that invitation or make any contact with the Tribunal in respect of their scheduled appearance or the review application more generally.

[17]    Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided it make its decision on the review without taking any further action to enable the applicants to appear before it.

14    The Tribunal’s decision and decision record were sent to the review applicants under cover of a letter dated 15 September 2014, which was addressed to the same Roselands address. It appears that this material was sent by ordinary post.

The relevant statutory provisions

15    It is desirable to set out or describe some relevant provisions of the Migration Act 1958 (Cth) (the Act) as in force at the time of the Tribunal’s decision. Sections 425 and 425A provided as follows:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

425A    Notice of invitation to appear

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4)    The notice must contain a statement of the effect of section 426A.

16    At that time, s 426A provided:

426A    Failure of applicant to appear before Tribunal

(1)    If the applicant:

(a)    is invited under section 425 to appear before the Tribunal; and

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

17    Section 441A, which is referred to in s 425A(2)(a) and set out the various methods by which the Tribunal could give documents to persons such as the husband and wife, relevantly provided:

441A    Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

(1)    For the purposes of provisions of this Part or the regulations that:

(a)    require or permit the Tribunal to give a document to a person (the recipient); and

(b)    state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

…

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of a member, the Registrar, or an officer of the Tribunal, dating the document, and then dispatching it:

(a)    within 3 working days (in the place of dispatch) of the date of the document; and

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii)    the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

(iii)    if the recipient is a minor – the last address for a carer of the minor that is known by the member, Registrar or other officer.

…

18    Section 441C described the circumstances in which a person such as the husband or wife was taken to have received a document from the Tribunal where the Tribunal gave them a document by one of the methods specified in s 441A. It was relevantly provided there:

441C    When a person other than the Secretary is taken to have received a document from the Tribunal

(1)    This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

…

Dispatch by prepaid post or by other prepaid means

(4)    If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)    in any other case—21 days after the date of the document.

…

19    It is also convenient at this point to note that, at the relevant time, the Act did not contain a provision such as that which now appears in the Act concerning the right of a review applicant to apply to what is now the Administrative Appeals Tribunal for the reinstatement of a review application where a decision is made on the review application after the applicant fails to appear notwithstanding an invitation under s 425 to do so (see s 426A of the Act, as amended from 18 April 2015).

The FCCA proceeding

20    By an application filed in the FCCA on 7 October 2014, the respondents sought judicial review of the Tribunal’s decision. They raised three grounds, only the second of which is relevant to this appeal. That ground was expressed as follows:

Another reason why RRT rejected my application is because we did not attend the interview. My wife and I were not in Sydney at that time, so we did not receive any letter about the interview date. I hope the Federal Circuit Court could give me another chance to defend myself and treat my application with justice.

21    Only the husband prepared an affidavit in support of the judicial review application. The affidavit, which was dated 1 October 2014, was very brief and simply said:

1.    I lodged application for a protection visa on 3/12/2013 and my application was refused on 16/4/2014.

2.    I appealed to RRT but was refused 15/09/2014.

22    No issue was taken either below or in the appeal on the question whether the absence of any direct evidence in support of ground 2 was relevant to the burden which the judicial review applicants carried in establishing jurisdictional error. Mr Herzfeld, who appeared for the Minister in the appeal, said that the case below was conducted on the basis that it was the fact that the review applicants were absent from Sydney at the relevant time and, even if the invitation letter was delivered to their residential address, they were unaware of its contents as at the date of the Tribunal’s hearing. Mr Herzfeld confirmed in oral address that the Minister’s position below “was that even if the applicants did not receive the hearing invitation, that in itself would not be indicative of a jurisdictional error”.

23    The primary judge concluded that the Tribunal’s exercise of discretion under s 426A to proceed to make a decision on the review without taking any further action to allow or enable the applicants to appear before it was unreasonable in the legal sense. Her Honour came to that conclusion after referring to relevant authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh); Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393 (Kaur) and Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; 150 FCR 439 (SZFHC). As will be further developed below, Justice Mortimer’s decision in Kaur was particularly influential in the primary judge’s reasoning.

24    The primary judge’s reasoning that the Tribunal acted unreasonably in the legal sense in proceeding to make a decision pursuant to 426A(1) may be summarised as follows:

•    based on the evidence before the Tribunal, it could not have been satisfied that the hearing invitation notice was dispatched pursuant to ss 425 and 441A(4) of the Act and, therefore, could not be satisfied that a meaningful opportunity to appear before the Tribunal was provided;

•    the Tribunal’s pro forma directed the respondents to provide the Tribunal with alternative forms of contact, which they did;

•    the Tribunal could easily have identified another avenue of communicating with the review applicants because it had been provided with an email address and mobile telephone number in their review application forms;

•    the Tribunal could not have been satisfied, in a practical sense, that the review applicants were in fact aware of the hearing date and time as there was no evidence of delivery of the hearing invitation (it having been sent by ordinary and not registered post), nor was there any evidence of the Tribunal attempting to contact the review applicants by subsequent email or telephone;

•    the review application was before the Tribunal for a relatively short period and it was not as though there had been a lengthy period in which the review applicants did nothing. Moreover, while the review applicants did not respond to the Tribunal’s invitation letter dated 12 May 2014, they were unrepresented and this was the first hearing invitation sent to them;

•    the absence of a pattern of communication between the review applicants and the Tribunal was not determinative; and

•    the review applicants, who were not represented and who did not have an agent or solicitor as an authorised recipient, were applicants for protection visas and thus the hearing invitation had significance for them. As in Kaur, their attendance at the Tribunal hearing could have made a difference to the outcome of the review, noting that the Tribunal acknowledged in its reasons for decision that there were significant aspects of the husband and wife’s circumstances about which it was unable to be satisfied in the absence of a hearing.

25    The primary judge’s reasoning as to why she considered the decision to be unreasonable in the legal sense is encapsulated in [80] and [84] of her Honour’s reasons for judgment:

80    I recognise that dispatch by ordinary post suffices under s 441A(4) of the Act and that it is not necessary for the purposes of considering whether there has been compliance with the statutory requirements for the Tribunal to determine whether an invitation has actually been received by an applicant in circumstances where the deemed receipt provisions in s 441C apply. However, in the particular circumstances of this case, where the hearing invitation in issue was sent only by ordinary post and where there was no follow-up in the absence of any response, despite the fact that the Applicants had provided details of an alternative method of communication by email as well as a telephone number in the review application form, I am of the view that it was unreasonable for the Tribunal to exercise its discretion under s 426A of the Act without attempting to communicate by using another of the methods of communication that had been provided to them by the Applicants. The Tribunal had no knowledge as to the fate of the hearing invitation and there was nothing in the material before it (insofar as that material is before the court) to indicate that the hearing invitation had come to the attention of the Applicants. The fact that the Tribunal provided reasons for its action does not, in these circumstances, demonstrate that the exercise of the discretion was reasonable.

…

84    In short, in the particular circumstances of this case, where the hearing invitation was sent by regular mail three months after the application was lodged; there was no response; the Applicants had provided an alternative methods [sic] of communication by email as provided for in the review form and also a contact telephone number; and having regard to the serious consequences for an applicant for a protection visa who failed to attend a Tribunal hearing, the Tribunal acted unreasonably in exercising its discretion to finalise the review under s 426A of the Act without taking any further steps to allow or enable the Applicants to appear before it. The matter should be remitted to the Tribunal for reconsideration according to law.

Minister’s submissions summarised

26    The Minister’s primary submissions may be summarised as follows. First, the Minister accepted that the discretion conferred by s 426A(1) must not be exercised unreasonably in the legal sense as defined in cases such as Li and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton).

27    Secondly, when that concept is used by reference to the outcome of an exercise of power, the following matters apply:

•    there is “an area of decisional freedom” reserved to the decision-maker, within which minds might differ;

•    the Court is not to remake the decision according to its own view as to reasonableness;

•    the legal standard and indicia of legal unreasonableness are found in the scope, subject and purpose of the relevant statutory provisions;

•    a conclusion that a decision is unreasonable in the legal sense may be assisted by expressions such as that the conclusion is one that no reasonable person could come to or a decision which lacks an “evident and intelligible justification”; and

•    the test for legal unreasonableness remains a stringent one.

28    Thirdly, having regard to these matters, the primary judge erred for the following reasons.

•    The significance placed on the proposition that the Tribunal could not have been satisfied that the applicants were aware of the hearing date and time is inconsistent with the deeming effect of s 441C of the Act. Whether a review applicant has, as a matter of fact, received an invitation in accordance with s 425 is not a matter which should be given great significance in assessing unreasonableness in the legal sense because that is inconsistent with the deeming effect of s 441C. Moreover, in circumstances where the applicants were able to receive at the Roselands address notification of the delegate’s decision supported an assumption by the Tribunal that documents sent to that address would be received by the applicants. Finally, Mr Herzfeld submitted in oral address that the primary judge erred in concluding, as a matter of fact, that the Tribunal could not have been satisfied that the invitation letter had been received by the husband and wife because, independently of s 441C, it was open to the Tribunal to apply the common law presumption that a letter which is sent will be received, citing Australian Trade Commissioner v Solarex Pty Ltd [1987] FCA 701 (Solarex).

•    The primary judge ignored the applicants’ interaction with the Minister’s delegate, including their failure to take up the invitation to attend an interview with the delegate. This provided evidence of “a pattern of conduct” from which the Tribunal could reasonably conclude that the applicants were aware of, but elected not to attend, the Tribunal’s hearing.

•    While accepting that the hearing invitation was of great significance to the applicants, so was the hearing before the delegate yet the applicants elected not to attend it.

•    While it was open to the Tribunal to seek to communicate with the applicants by email or telephone, there was no obligation on it to use these forms of communication and to find otherwise would effectively impose an obligation on the Tribunal to do so in virtually all protection visa cases, which is inconsistent with s 426A. Moreover, in the original visa application, it was expressly stated that the husband did not agree to the Department communicating with him by fax, email or other electronic means.

•    Kaur is distinguishable because there were facts there which suggested that the applicant’s failure to appear at the Tribunal hearing was unexpected or out of character, unlike the position here. Similarly, Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508 (Malecaj) is distinguishable because the Tribunal knew in that case that the applicant was unable to attend the hearing on the appointed day, which is not the case here.

•    The decision in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 (AZAFB) per North ACJ is wrong if it stands for proposition that the Tribunal must search its records for an alternative way of contacting an applicant who does not appear and, if it has one, is obliged to use it. In any event, that case is distinguishable on its facts.

29    In oral address, and in response to an invitation from the Court to identify appealable error on the part of the primary judge, counsel for the Minister said (emphasis added):

Well, with respect, your Honour, given that the question is a legal one of whether the tribunal acted in a Wednesbury unreasonableness way, or a legally unreasonable way it’s as much a matter for your Honours to answer that question as it was for the primary judge, and it’s not necessary for your Honours to say the primary judge made a legal error in the course of her Honour’s analysis. However…”

30    We will return below to deal with this matter with reference to the important issue of the nature and scope of the appeal to this Court.

Respondents’ submissions summarised

31    The respondents’ submissions may be summarised as follows. First, if all the requirements of s 441A(4) were met, s 441C would operate so that the respondents would have been taken to have received the hearing invitation notice. This deeming provision operates by law and does not create a rebuttable presumption of fact, citing SZUUR v Minister for Immigration and Border Protection [2016] FCA 123; 241 FCR 409 (SZUUR) per Farrell J.

32    Secondly, this deeming provision, which is designed to achieve administrative certainty and may produce unfairness to individuals affected by it, means that the provision should be strictly construed, citing Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178; 227 FCR 494 at [48] per Kenny, Edmonds and Rangiah JJ.

33    Thirdly, the primary judge could not be satisfied that s 441A(4) had been complied with as there was no satisfactory evidence of the hearing invitation notice having been dispatched within three working days as required by that provision.

34    Fourthly, the Court should not accept the Minister’s submission that the primary judge should assume that the documents sent to the Roselands address were received because this submission fails to recognise that deeming provisions should be strictly construed and applied. Consequently, in the absence of evidence that the hearing invitation notice was in fact dispatched to the respondents as required by ss 425 and 441A(4), the deeming provision in s 441C has no effect.

35    Fifthly, the Minister’s criticisms of the primary judge for not setting out the chronology of the respondents’ interactions with the Department (including the failure to attend the interview with the Minister’s delegate) is unjustified because the primary judge was not examining the explanation given by the Tribunal, but rather was focusing on the outcome of the exercise of the power in s 426A.

36    In oral address, Ms Andelman, who appeared pro bono for the respondents, took the Court to various other cases involving legal unreasonableness in proceeding to determine a review in the absence of the review applicants. Those cases included Kaur, Malecaj, MZALO v Minister for Immigration and Border Protection [2016] FCA 1339 and Ponugoti v Minister for Minister for Immigration and Border Protection [2015] FCA 67.

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.

Conclusion

58    For these reasons the appeal must be dismissed and the appellant ordered to pay the respondents’ costs, as agreed or assessed.

Associate:

Dated:    2 March 2017