FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s 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    This is an appeal by the Minister for Immigration and Border Protection (Minister) from a decision of a judge of the Federal Circuit Court of Australia (FCCA). The Minister appeals from the primary judge’s decision setting aside and remitting for determination according to law, a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the Minister’s earlier decision to refuse the first respondent, Mr Shoukath Ali Mohammed a Partner (Residence) (Class BS) (subclass 801) visa (Permanent Partner visa).

2    The primary judge held that the Tribunal’s decision was affected by jurisdictional error on the ground of legal unreasonableness. The principles governing the duty of a court when a conclusion is asserted to be vitiated by legal unreasonableness is discussed in more detail later in our reasons but it is uncontentious that whether a particular circumstance will amount to legal unreasonableness is invariably context and fact dependent. It is thus convenient to begin our reasons by providing a short precis of the circumstances in which this matter came before the primary judge. The facts are not in dispute.

BACKGROUND

3    Mr Mohammed is an Indian citizen. He arrived in Australia on 26 February 2009 on a Vocational Education and Training Sector (subclass 572) visa. While in Australia he met Ms Kayleen Anne Mayer, an Australian citizen. The applicant and Ms Mayer were married on 12 September 2012. Ms Mayer thereafter sponsored his migration to Australia.

4    On 11 January 2013, on the basis of his marriage to Ms Mayer, the applicant lodged a combined application for a Partner (Temporary) (Class UK) (subclass 820) visa (Temporary Partner visa) and a Permanent Partner visa.

5    Mr Mohammed’s application for a Temporary Partner visa was refused by a delegate of the Minister on 5 August 2013. The delegate of the Minister also found that because Mr Mohammed “failed” to satisfy the prescribed criteria for the grant of a Temporary Partner visa, he was “therefore unable to satisfy the criteria for the grant of a [Permanent Partner visa]”. Mr Mohammed sought merits review of that decision in the then Migration Review Tribunal (the MRT).

6    On 18 December 2014, the MRT affirmed the decision of the Minister. The MRT’s decision to affirm the decision was made on the basis that the decision in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; 116 FCR 557 (Boakye-Danquah) was binding on it, such that it was restricted to applying certain discretionary criteria potentially relevant to the grant of a Temporary Partner visa to the circumstances existing as at the time of Mr Mohammed’s original application.

7    Mr Mohammed did not seek judicial review of the MRT’s decision.

8    Subsequently, on 23 April 2015 Mr Mohammed was renotified in relation to his Permanent Partner visa application after the “Department … identified an error” in the earlier decision dated 5 August 2013 and a new decision was made. In that new decision, a different delegate of the Minister also refused Mr Mohammed’s application for a Permanent Partner visa but this time on the grounds that he neither held, nor had held, a Temporary Partner visa. It is common ground between the parties that a criterion for the grant of a Permanent Partner visa is that, at the time of a decision on the visa application, the applicant holds, or has held, a Temporary Partner visa: see cl 801.221 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).

9    Mr Mohammed nonetheless sought review of that decision in the Tribunal. On 12 February 2016, following a hearing, the Tribunal affirmed the decision of the Minister’s delegate dated 23 April 2015 on the same basis.

10    Mr Mohammed then sought judicial review of the Tribunal’s decision in the FCCA. Given that the grant of a Permanent Partner visa required him to hold or to have held a Temporary Partner visa that application appeared to be without any prospects of success.

11    However, on 11 March 2016 a Full Court of the Federal Court of Australia published its reasons in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 (Waensila). Waensila overturned Boakye-Danquah. The effect of the decision of the Full Court was that, relevant to the present case, it had been an error of law for the Tribunal to have confined its consideration of the criteria which had been dispositive of Mr Mohammed’s earlier unsuccessful application for a Temporary Partner visa to those applying as at the time of a review applicant’s original application.

Mr Mohammed’s review rights in respect of his Temporary Partner visa

12    As noted above, Mr Mohammed had not sought review of the MRT’s December 2014 decision to affirm the Minister’s refusal to grant him a Temporary Partner visa. However, when Mr Mohammed’s judicial review application in respect of the Tribunal’s decision to affirm the Minister’s decision not to grant him a Permanent Partner visa came before the FCCA, counsel for the Minister advised the primary judge that, having regard to the decision in Waensila, the Minster consented to (a) Mr Mohammed amending his application to allow him to seek review of the Tribunal’s decision made on 18 December 2014 regarding his Temporary Partner visa; (b) any necessary extension of time; (c) the FCCA setting aside the Tribunal’s decision; and (d) the FCCA remitting the matter to the Tribunal for determination according to law.

13    Unsurprisingly, Mr Mohammed agreed to that course being taken. The FCCA stated it would make consent orders in those terms. It did so at the conclusion of its hearing of the proceeding which gives rise to this appeal.

The primary judge’s decision subject to appeal

14    It was in the above circumstances that the primary judge had to decide what to do about Mr Mohammed’s extant application for constitutional writs seeking to set aside the Tribunal’s decision of 12 February 2016. The court first addressed the three grounds of appeal as had been advanced on Mr Mohammed’s behalf. The primary judge held that there was no merit in any of those grounds. No issue arises on the appeal as to the correctness of those conclusions. If it needs to be said, in our view her Honour was plainly correct.

15    However, her Honour thereafter proceeded to address what she referred to as “Additional matters” as follows:

Additional matters

22.    There is a question in this case as to whether it was legally unreasonable for the second Tribunal to refuse the applicant a subclass 801 permanent partner visa on the grounds that the applicant did not have a subclass 820 temporary partner visa in circumstances where the Tribunal’s decision in relation to the subclass 820 temporary partner visa is now acknowledged to have been affected by jurisdictional error.

23.    The consequence of a Tribunal decision being affected by jurisdictional error is that it is no decision at all. Therefore, when the Tribunal made its decision on the subclass 801 permanent partner visa application, there had not been a valid decision on the applicant’s subclass 820 temporary visa application. In effect, although unbeknownst to the Tribunal, the applicant’s review application in relation to his subclass 820 temporary visa application had not been validly determined. From a legal point of view, although not a factual point of view, the applicant’s review application in respect of his subclass 820 temporary partner visa application was an outstanding application.

24.    The Minister submitted that the Tribunal’s decision in respect of the subclass 801 permanent partner visa was free of jurisdictional error. The Minister noted that the Full Court decision in Waensila had not been handed down when the Tribunal made its decision on the subclass 801 permanent partner visa application. However, that is beside the point. Once it is accepted that the Tribunal’s decision on the subclass 820 temporary partner visa application was not a valid decision, it is immaterial whether the Tribunal was aware of that invalidity or not.

25.    The Minister also noted that even if the applicant were to be granted a subclass 820 temporary partner visa in the future, that could not have retrospective effect so as to mean that the Tribunal’s existing decision on the subclass 801 permanent partner visa contained jurisdictional error.

26.    However, that submission does not deal with the issue that, when the Tribunal decided that the applicant did not meet the criteria for a subclass 801 permanent partner visa because he did not hold and has never held a subclass 820 temporary partner visa, there was legally, although not factually, an outstanding application to review the delegate’s decision in relation to the applicant’s application for a subclass 820 temporary partner visa.

27.    The Minister also submitted that the applicant did not seek an adjournment from the Tribunal. That is so. Like the Tribunal, the applicant did not know that the Tribunal’s decision on the subclass 820 temporary partner visa application was Waensila affected. The realisation that the Tribunal’s decision on the subclass 820 temporary partner visa application was no decision at all changes everything. Presumably, with the benefit of what we now know, the applicant would have applied for an adjournment.

28.    The Minister also submitted, faintly, that if the Tribunal upheld the applicant’s application for review in respect of the subclass 820 temporary partner visa application, the applicant could apply onshore for another subclass 801 permanent partner visa and not be worse off. The reason that submission was put faintly was that there may be complications with that course that are not presently apparent. In any event, there would be, at a minimum, another application fee, which I understand to be not inconsequential. It seems to me to be immaterial, in determining whether the Tribunal made a jurisdictional error, that the applicant might have a right to make another application onshore for a subclass 801 permanent partner visa.

29.    The Minister referred to Basra v Minister for Immigration and Border Protection [2018] FCA 422. However, that case deals with a different point, namely, whether the Tribunal dealing with the subclass 801 permanent partner visa application had jurisdiction to also determine the subclass 820 temporary partner visa application. Moshinsky J held that the Tribunal did not have such jurisdiction. The question in the present case is whether it was reasonable for the Tribunal to decide the subclass 801 permanent partner visa application when the subclass 820 temporary partner visa application had not been validly determined by the Tribunal.

30.    It is true that the applicant did not, as a matter of fact, hold a subclass 820 temporary partner visa, and had never held such a visa, at the time of the Tribunal’s decision on the subclass 801 permanent partner visa application. However, legally, the applicant had an outstanding review application with the Tribunal in respect of his subclass 820 temporary partner visa application. The review application in respect of the subclass 820 temporary partner visa had to be validly determined before the Tribunal could decide the subclass 801 permanent partner visa review application on the grounds that the applicant did not hold, and had never held, a subclass 820 temporary partner visa.

31.    It seems to me that, in the circumstances, the only reasonable approach was for the Tribunal to adjourn the hearing in relation to the subclass 801 permanent partner visa application until after the Tribunal had validly determined the subclass 820 temporary partner visa application. That is so, even though the Tribunal did not know, and could not have known, that the existing Tribunal decision in relation to the subclass 820 temporary partner visa application was no decision at all. That is, the Tribunal’s decision on the subclass 801 permanent partner visa application was unreasonable in a legal sense and must be set aside.

Conclusion

32.    For the reasons given, it seems to me that there has been jurisdictional error in this case. The decision of the Tribunal relating to the applicant’s subclass 801 permanent partner visa application should be set aside and the matter should be remitted to the Tribunal for determination according to law. …

16    The primary judge accordingly made orders in those terms.

THE APPEAL

17    On the Minister’s behalf Mr Knowles does not submit that the primary judge erred in having identified a ground of review not advanced by Mr Mohammed or, her Honour having done so, to have made orders in consequence. No issue of procedural fairness arises: the primary judge, properly, had invited submissions and had conducted a further hearing on the following question (set out at [6] of her Honour’s reasons):

[W]hether it was legally unreasonable for the Tribunal to decide the review in relation to the applicant’s permanent subclass 801 partner visa application when the applicant’s application for review in relation to his application for a temporary subclass 820 visa had not been validly determined, notwithstanding that the Tribunal might have reasonably thought that the subclass 820 review application had been validly determined.

18    Nor does the Minister seek to revisit the consent orders the primary judge made. The single ground of appeal pressed by the Minister requires this Court only to decide whether the primary judge was in legal error to have remitted the task of reconsidering Mr Mohammed’s application for a Permanent Partner visa to the Tribunal.

19    The single ground of appeal advanced by the Minister is as follows:

The Federal Circuit Court erred in finding that the decision made by the second respondent, the Administrative Appeals Tribunal, on 12 February 2016 is affected by jurisdictional error on the ground of legal unreasonableness.

Particulars

The Tribunal’s decision is not affected by jurisdictional error on the ground of legal unreasonableness. In the particular circumstances of this case, it was not legally unreasonable for the Tribunal not to adjourn the hearing and determination of its review. The Federal Circuit Court erred in finding otherwise.

20    Having regard to the character of the jurisdictional error which the primary judge apprehended vitiated the Tribunal’s decision, namely legal unreasonableness, that question is not to be answered in the abstract; it must be assessed and evaluated having regard to the entire matrix of context and fact then before her Honour, including, and perhaps critically, the position taken by the parties regarding the restoration of Mr Mohammed’s review rights in respect of his application for a Temporary Partner visa.

Legal unreasonableness and jurisdictional error: the principles

21    The effect of Pt 8 of the Migration Act 1958 (Cth) (the Migration Act) is that only decisions affected by jurisdictional error are liable to be “called into question” in a court and “subject to prohibition, mandamus, injunction declaration or certiorari”: see s 474(1) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476.

22    A decision authorised to be made pursuant to the Migration Act will be affected by jurisdictional error if it is vitiated by legal unreasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). That is because Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler J.

23    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton), Allsop CJ summarised the relevant case law and principles underpinning the reasoning in Li as follows (Griffiths J and Wigney J agreeing at [87] and [90] respectively):

5    [The] statements of general principle in the three judgments [in Li] (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated law-making power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].

6    Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome-focused” conclusion without any specific jurisdictional error being identified: Singh at [44].

7    It is in relation to the second context, the “outcome-focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.

24    In respect of the duty of a court when a conclusion has been asserted to be vitiated by unreasonableness his Honour observed:

9    The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.

10    This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63]-[76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].

11    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

12    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

13    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

25    Subsequently in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 (SZVFW), Nettle and Gordon JJ stated the principles governing the task of a court where it is alleged a decision is unreasonable as follows:

78    The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

79    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.

80    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.

81    How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.

82    Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

83    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 of an exercise of a discretionary power by a decision maker. Rather, the court is asking whether the decision maker's purported exercise of power was beyond power because it was legally unreasonable.

84    Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

85    On review, a conclusion by a primary judge that a decision maker has exercised a power in a manner which is unreasonable does not depend upon the exercise of any discretion by the primary judge. It may involve an evaluative process. But labelling the task of a primary judge as “evaluative” does not entitle an appeal court to determine, for example, that the purported exercise of power by the decision maker was valid because it was not legally unreasonable but then, nonetheless, go on to conclude that it was open to the primary judge to reach the opposite view.

(Emphasis in original, footnotes omitted)

26    The reasoning of Allsop CJ in Stretton necessarily must be subject to any express or implied contrary statements of the High Court but we are satisfied that there is no inconsistency between Allsop CJ’s analysis of the law as expressed in Stretton and the reasoning of Nettle and Gordon JJ in SZVFW. Nor was there anything said by Keifel CJ (at [10]-[15]) in SZVFW to suggest her Honour doubted the propositions stated in Stretton. Gageler J (at [59]-[60]) and Edelman J (at [135]) each referred approvingly to aspects of Allsop CJ’s reasoning. We accordingly proceed on the basis that neither the reasoning of the plurality in SZVFW nor that of any single judge of the High Court stands in the way of this Court having recourse to the reasoning in Stretton to further illuminate how the relevant principles governing legal unreasonableness as expressed in SZVFW (binding on us) are to be assessed and applied. Neither party submitted otherwise.

27    How then do those principles apply in the facts in this case?

28    It will be recalled that Mr Mohammed made a combined application on 11 September 2012 for both a Temporary Partner visa and a Permanent Partner visa. He did so by ticking the single box on the relevant form (Form 47SP) as supplied by the Department of Immigration and Border Protection (the Department).

29    Mr Mohammed’s application for a Temporary Partner visa was subsequently refused by a delegate of the Minister. Mr Mohammed sought review in the MRT (as it then was). On 18 December 2014, the MRT affirmed the Minister’s decision.

30    On 12 February 2017 the Tribunal affirmed a decision of the delegate of the Minister not to grant Mr Mohammed a Permanent Partner visa. The Tribunal’s decision was based on Mr Mohammed’s want of satisfaction of cl 801.221 of Sch 2 to the Regulations which, as discussed above, relevantly required an applicant for a Permanent Partner visa to hold or to have held, a Temporary Partner visa.

31    It was not until 12 October 2018, by consent, that the MRT’s decision in respect of Mr Mohammed’s application for a Temporary Partner visa was set aside by the FCCA and the matter remitted to the Tribunal (now subsuming the role of the former MRT) for determination according to law. In setting aside that decision the primary judge annotated those orders to record:

The Minister consents to the decision of the Migration Review Tribunal made on 18 December 2014 in matter number 1312032 being set aside because it is affected by the error identified in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32.

32    Upon the MRT’s decision of 18 December 2014 being set aside by the order of the FCCA, that decision was judicially recognised to have been, in law, at all times, merely purported, and no decision at all. In his oral submissions Mr Knowles did not press the proposition advanced at footnote 29 of his written submissions, on the authority of Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1, that the jurisdictional error affecting the MRT’s decision may not necessarily have such a legal consequence. Given the terms of the consent annotation and consent orders made by the primary judge the concession was appropriately made.

33    It is therefore uncontentious that the MRT’s (now the Administrative Appeals Tribunal by reason of the tribunals’ amalgamation) review in respect of Mr Mohammed’s application for a Temporary Partner visa was never validly completed. As a matter of law, it remained and remains pending.

34    Thus when the Tribunal affirmed the Minister’s decision to refuse Mr Mohammed a Permanent Partner visa, as a matter of law no decision had yet been made by it in respect of his application for a Temporary Partner visa.

35    However, to establish the context for the submissions advanced on behalf of the Minister in this appeal it is common ground that as at the time of its decision neither the MRT nor Mr Mohammed (or the Minister) were aware, or could have been aware, that as a matter of law the earlier decision of the MRT made in December 2014 may have been, or was, infected by legal error. The possibility that that might be so became evident only after the Tribunal had made its decision to affirm the Minister’s decision to refuse Mr Mohammed a Permanent Partner visa. It did so upon the publication of the decision in Waensila a month later on 11 March 2016.

The Minister’s submissions

36    The Minister submits that in those specific circumstances, the primary judge was wrong in law to conclude that it had been legally unreasonable for the Tribunal not to adjourn the hearing and determination of the review “until after the Tribunal had validly determined the subclass 820 temporary partner visa application”. Mr Knowles’ written submissions were as follows:

33    The ground of legal unreasonableness is invariably dependant on the particular facts of a given case. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, Nettle and Gordon JJ stated at [84] that:

… legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

34    The particular factual circumstances of this case were that:

(a)    it was a criterion for the grant of a subclass 801 visa that, at time of decision, a visa applicant must hold, or have held, a subclass 820 visa;

(b)    at the hearing before the Tribunal, Mr Mohammed confirmed that he did not hold, and had never held, a subclass 820 visa;

(c)    there is no indication that, at that time, Mr Mohammed sought an adjournment of the hearing and determination of the review before the Tribunal;

(d)    nor was there any other matter which might have caused the Tribunal to consider whether it should adjourn the hearing and determination of the review;

(e)    in particular, the Tribunal did not know, and could not have known, that the subclass 820 visa refusal was affected by jurisdictional error because, at the time of its decision, Waensila had not been decided and, moreover, the prevailing authority was Boayke-Danquah; and

(f)    in any event, any jurisdictional error affecting the subclass 820 visa refusal did not and could not alter the fact that, at the time of the Tribunal’s decision, Mr Mohammed did not hold, and had not held, a subclass 820 visa.

35    Having regard to these particular factual circumstances, the Tribunal’s exercise of power was not legally unreasonable. In particular, it was not, given these particular factual circumstances, legally unreasonable for the Tribunal not to adjourn the matter.

36    Among other things, the Tribunal’s decision was not “manifestly unreasonable” or arbitrary or capricious or “so unreasonable that no reasonable person could have arrived at it” or lacking “evident and intelligible justification”. Nor did the Tribunal somehow misunderstand its statutory task of review or misconstrue the applicable visa criterion. Nor did the Tribunal fail to comply with any procedural obligations owed to Mr Mohammed under the Migration Act 1958 (Cth) or otherwise. No adjournment was sought by Mr Mohammed and, at the time of the Tribunal’s decision, there was nothing to suggest that any adjournment should even be considered by the Tribunal.

37    It was put to Mr Knowles in argument that to focus upon whether the Tribunal had failed to grant an unsought adjournment might not address the correct question. Asked to respond to the proposition that a conclusion of legal unreasonableness may be reached on an outcome focused analysis in the absence of a specific error being capable of being ascertained (the relevant outcome being that the Tribunal had completed its review of Mr Mohammed’s application for a Permanent Partner visa while in law his application for it to review his application for a Temporary Partner visa remained yet to be determined), Mr Knowles acknowledged that the Tribunal had discretion as to the timing of its decision. Mr Knowles submitted however that the duty of the Tribunal to proceed in a manner that was fair, just, economical and quick was a factor to be weighed in the matrix of circumstances material to any decision as to whether its decision to proceed to complete its review of Mr Mohammed’s application for a Permanent Partner visa should be characterised as having been legally unreasonable.

38    On behalf of the Minister, Mr Knowles submitted it was relevant to whether the Tribunal’s decision to proceed to determine his Permanent Partner visa should be held to have been legally unreasonable on an outcome focussed analysis to take into account that if Mr Mohammed was ultimately granted a Temporary Partner visa (which would depend on a decision yet to be made by the Tribunal) he would then hold a substantive visa. In terms of prejudice, there was nothing in the Migration Act or relevant subordinate legislation that would prevent Mr Mohammed making a subsequent application for a Permanent Partner visa. Mr Knowles submitted that the primary judge at [28] had mischaracterised the Minister’s position in stating that it had been “only faintly” submitted that if the Tribunal upheld Mr Mohammed’s application for review in respect of the Temporary Partner visa application, “he could apply onshore for another Permanent Partner visa and not be worse off”. On Mr Knowles’ submission, the primary judge had erred in not giving that factor the consideration it warranted.

39    Mr Knowles accepted additional fees would be incurred. He conceded a person in Mr Mohammed’s circumstances would be required to pay a total of $10,160 (a lodgement fee of $7,160 plus an additional applicant fee, as a person over 18 years of age, of $3,000) to submit a new application. Mr Knowles however drew attention to the ability to seek a refund pursuant to reg 2.12F of the Regulations:

Now I don’t say that a refund application would succeed. It may very well fail and it looks as though on my first analysis of it that it is quite narrow. That the circumstances narrow in which you can apply for a refund and all I say is that that is far removed from some stultification of the statutory scheme whereby this decision might have prevented a person from making a visa application. I accept it might come with a cost but that goes beyond the Act insofar as the ability to make an application for the visa itself.

40    Mr Knowles submitted that by contrast to a circumstance such as fraud on a tribunal which might leave the tribunal’s statutory task wholly unperformed without the attribution of any fault on its part (as was the case in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE)), a merely practical requirement to pay a fee for the reconsideration of an application could not be said to rise to the level of unreasonableness necessary to stultify the statutory scheme. A fee may amount to a practical impediment but in a legal sense the requirement to pay a fee would not prevent Mr Mohammed from being able to make a further application for a Permanent Partner visa.

41    Mr Knowles acknowledged that the Minister had agreed to orders being made in October 2018 by the FCCA extending time to file an application to set aside as invalid the MRT’s decision of 18 December 2014, and that the primary judge had set aside that decision by consent. He accepted that it had been open to the Minister to have opposed the re-opening of the validity of that decision taken some years ago. Mr Knowles did not dispute that the Minister having taken that decision, the judicial invalidation of the MRT’s decision necessarily became a factum upon which the principles of legal unreasonableness might operate. He nonetheless submitted that it should not be given too much weight as the Tribunal could not have known at the time of making its decision of either the (then undecided) case of Waensila or of the Minister’s subsequent concession in the FCCA with respect to the Temporary Partner visa. Mr Knowles rejected that the Minister’s appeal in the present proceeding amounted to a back-door way of resisting a concession made at that time.

Mr Mohammed’s submissions

42    Mr Mohammed’s written submissions advanced three principle contentions as follows:

4    First, where a decision is infected by jurisdictional error, it is at law no decision at all… This has been recognised in respect of judicial review in a number of contexts.

(a)    A recent example of the High Court so concluding was in HFM043 [v The Republic of Nauru [2018] HCA 37; 92 ALJR 817]. The Court there allowed an appeal of a decision from an inferior court because that court concluded that it lacked jurisdiction because of an anterior decision of an administrative decision-maker under the same legislative regime. Since the High Court found that that document issued by the administrative decision- maker was invalid at law, it also concluded that the decision of the inferior court relying on that document was wrong at law. This is what the court below did in this case also. In both cases, the subsequent decision was inoperative at law even though there was no authority to say that the document on which it was reliant was unlawful, nor in both cases was there any challenge to its validity at the time of the decision-maker’s decision to rely on it.

(b)    In Park Oh Ho [v Minister for Immigration and Ethnic Affairs [1989] HCA 54; 167 CLR 637] the appellants were detained following the making of deportation orders by a delegate of the Minister. The deportation orders were subsequently set aside ab initio in the Federal Court. One of the issues before the High Court was whether the period of detention, effected pursuant to a deportation order later declared void, was unlawful. The High Court unanimously held that, because the deportation order was void ab initio, the detention was not, and had never been, lawful…..

(c)    To similar effect is the decision of the House of Lords in R v Governor of Brockhill Prison; Ex parte Evans (No 2) [[2001] 2 AC 19]. In that case, the applicant had been imprisoned beyond her correct release date. This occurred because the prison governor had calculated the release date on the basis of judicial precedents that bound the authorities at the time, but which were subsequently overturned. The prison governor was “blameless”. He relied on documents prepared by the Home Office explaining the calculation of release dates. The Home Office was also “blameless”. The Home Office had relied upon case law which was, at the time, authoritative and binding. The House of Lords rejected the prison governor’s argument that lawful justification was to be assessed at the time the detention of the prisoner was effected on the basis of an earlier legal understanding. Their Lordships held that the final judicial exegesis on the calculation of release dates operated with retrospective effect to make the applicant’s imprisonment during the relevant period unlawful…

5    Second, a decision-maker’s subjective knowledge is not determinative of the question of whether that decision-maker’s decision is infected by jurisdictional error. A blameless decision-maker can be found to have made a decision which was so infected. As occurred in this case, it is well-established that jurisdictional error ‘can occur without any personal fault on the part of the decision-maker’. Courts, including this one, have reached this conclusion on many occasions and in a number of contexts.

6    The cases on point … are principally concerned with a denial of procedural fairness. Nothing in them, nor in the jurisprudence concerning legal unreasonableness, indicates that the principles differ in the latter context. As was made clear in Li, unreasonableness is closely linked with procedural fairness in any event. The learned authors of Judicial Review of Administrative Action and Government Liability [(6th ed.) at [8.390]] agree. Their work notes that the refusal of an adjournment may amount to either a denial of procedural fairness or legal unreasonableness.

(a)     In SZFDE the appellants had chosen not to accept the Tribunal’s invitation to attend the hearing of their review. In so doing, they had acted on the advice of an adviser who they thought to be both a solicitor and a registered migration agent. In fact, he had been struck off both rolls and, as such, the appellants were the subject of a fraud. A unanimous High Court stated that agent’s conduct stultified the operation of the critically important natural justice provisions and disabled the Tribunal from the due discharge of its imperative statutory functions. This was so despite the Tribunal being “blameless” for the error. The result was that the Tribunal’s jurisdiction remained constructively unexercised….

9    Third, the ground of legal unreasonableness is not limited by what facts were known to the decision-maker. It is a broader legal category than the Appellant would have it. Legal unreasonableness ‘is not definitional, but one of characterisation’ [BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [79]] – it ‘is a conclusion’ where a decision ‘lacks an evident or intelligible justification’ [Li at [76]]. The Court’s task in this context is informed by “fundamental values” anchored in the common law tradition [Stretton per Allsop CJ at [9]-[11]]. Unreasonableness is “a translation of the ‘human into the legal’” [SZVFW per Gageler J at [59]].

10    Legal unreasonableness can be ‘outcome-focused’, especially where no reasons are given by the relevant decision-maker for the impugned decision. When there is an absence of reasons, ‘the supervising court can only focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome’ [Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393 at [110] per Mortimer J].

(Emphasis in original, citations omitted except where expressly set out.)

43    Having regard to those propositions, Mr Albert, appearing for Mr Mohammed, submitted that the primary judge had been correct to conclude that the anterior purported decision of the MRT to affirm the Minister’s decision to reject Mr Mohammed’s Temporary Partner visa could not be a basis upon which the Tribunal was lawfully entitled to rely for the subsequent decision on his Permanent Partner visa.

44    Although the Tribunal had not been aware that there was an outstanding application for a Temporary Partner visa, having regard to the orders made by consent to set aside the MRT’s decision, as a matter of law there had been. Her Honour had been entitled to conclude that the outcome of the Tribunal refusing Mr Mohammed’s Permanent Partner visa while his Temporary Partner visa remained outstanding and yet to be determined was legally unreasonable because such a decision could not have been reached if proper reasoning had been applied in the exercise of the Tribunal’s statutory power in the particular circumstances.

CONSIDERATION

Preliminary observations regarding a combined application for a Temporary Partner visa and a Permanent Partner visa

45    The starting position for analysis is the fact that on 11 January 2013 Mr Mohammed submitted a single, combined, application for two visas: a Temporary Partner visa and a Permanent Partner visa.

46    There is no dispute as to the lawfulness of Mr Mohammed doing so. Mr Knowles accepts that what Mr Mohammed did was consistent with the normal process followed by a person seeking to migrate to Australia as a partner of an Australian citizen.

47    That perhaps understates the practical position as revealed by the evidence in this appeal; the form supplied by the Department (Form 47SP) as filled out and submitted by Mr Mohammed makes no provision for the possibility that a person might seek to proceed otherwise.

48    Mr Knowles submitted the circumstance that Temporary Partner visa and Permanent Partner visa applications can be made on the one form does not deny that the two visa applications are, nonetheless in law, separate visa applications.

49    That must be correct.

50    However Mr Knowles did not dispute that there necessarily was a structural legal interrelationship between the two applications. As Mr Knowles observed in his written submissions, a criterion for the grant of a Permanent Partner visa is that, at the time of a decision on the visa application, the applicant holds or has held, a Temporary Partner visa. The fact of an applicant holding or having held a valid Temporary Partner visa is therefore a jurisdictional fact, the existence of which must be established prior to the making of a valid grant of a Permanent Partner visa.

51    Mr Knowles acknowledged, where a combined application has been made for both a Temporary Partner visa and a Permanent Partner visa, then having regard to the terms, scope and purpose of the statutory scheme in which the holding of a Temporary Partner visa is a precondition for the grant of a Permanent Partner visa, ordinarily the application for the Temporary Partner visa will be determined first. That was said to be the “practical way in which it works”.

52    Not only is that the practical common sense way to sequence the processing of a combined visa application, but also, subject to the qualifications below, we are satisfied that it would be unreasonable in a legal sense for a decision maker to proceed otherwise.

53    That is because any person who submits a combined application for both visas at that time necessarily cannot meet the criteria for a Permanent Partner visa until he or she has had his or her application for a Temporary Partner visa first assessed and approved. Parliament could have, but has not, required such applications to be made sequentially. Instead, as Mr Knowles acknowledges, the scheme provided for by the Migration Act provides in practice for both applications to be made at the same time on a single form.

54    The law as stated in Li assumes an administrative power conferred on a decision maker by the Parliament will be exercised reasonably. Having regard to the terms, scope and purpose of the statutory scheme, where both visas have been applied for at the same time, it would, subject to the qualifications we address below, amount to an arbitrary and capricious exercise of power were a decision maker to proceed in the reverse order so as to dismiss an application for a Permanent Partner visa because of an applicant’s want of possession of a yet to be determined Temporary Partner visa. It would be unreasonable in legal terms for a decision maker to proceed in such a manner.

55    Mr Knowles however submits that there may be circumstances in a particular case where both visas have been applied for at the same time in which “it might be possible” for an application for a Permanent Partner visa to be refused before a decision is made in respect of a person’s application for a Temporary Partner visa.

56    We accept that submission although we would give it only limited scope for application.

57    Independent of the want of the applicant holding or having held a valid Temporary Partner visa, there may be an additional specific criterion or specific criteria applicable to an application for a Permanent Partner visa incapable of being met in a particular case. In such an instance it would not be legally unreasonable to refuse an application for a Permanent Partner visa for such a reason even prior to consideration being given to the validity or otherwise of the associated Temporary Partner visa.

58    However, save in exceptional circumstances, of which the circumstances of this appeal may be one, we are satisfied that the principles cited above require the conclusion that if a valid combined application for both visas has been submitted, for a decision maker to refuse an application for a Permanent Partner visa before the applicant has been determined to be eligible or ineligible for the grant of a Temporary Partner visa would be a legally unreasonable capricious act and the decision would be vitiated by jurisdictional error.

59    We therefore turn to consider whether the circumstances of this appeal are governed by the rule or an exception to it.

Was the Tribunal’s decision legally unreasonable in the facts of this appeal?

60    The Minister’s written submissions focus on the reasoning of the primary judge as expressed at [31] that, in the circumstances, the only reasonable approach was for the Tribunal to have granted an adjournment of the hearing of Mr Mohammed’s Permanent Partner visa application until after it had validly determined his Temporary Partner visa application.

61    However the question upon which the primary judge invited submissions was not so narrowly focussed. It was whether it had been legally unreasonable for the Tribunal to decide the review in relation to the applicant’s Permanent Partner visa when his application for review in relation to his application for a Temporary Partner visa had not been validly determined, notwithstanding that the Tribunal might have reasonably thought that the Temporary Partner visa review application had been validly determined: see at [16] above.

62    It is the orders of the court below (which necessarily gave an affirmative answer to that question), not her Honour’s specific reasoning, which are the subject of appeal.

63    In our view, a procedural straw-man question of whether the Tribunal’s decision to refuse to grant Mr Mohammed an adjournment (for which it is common ground that no application was made) cannot be dispositive. The Minister’s appeal requires this Court to decide whether the primary judge erred in concluding that the Tribunal’s decision to determine Mr Mohammed’s Permanent Partner visa application without having regard to the legal circumstances applying as at that time (albeit crystallised only later) was legally unreasonable.

64    Having regard to the authorities binding on us, that question must be determined in light of the whole matrix of circumstances applying as at the time of the decision.

65    At the risk of repetition we note that the decision of the MRT to affirm the Minister’s decision to refuse Mr Mohammed’s application for a Temporary Partner visa was set aside by consent because it was affected by the error of law identified in Waensila.

66    It has been settled law since the High Court’s decision in Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 (Muin) that a tribunal may fall into jurisdictional error notwithstanding the absence of fault on its part. In that case a circumstance not known to, nor capable of being ascertained by, the then Refugee Review Tribunal (and for which it was not to blame) was held to have resulted in procedural unfairness such as to constitute jurisdictional error. More recently, the High Court in SZFDE recognised that the fraud of a third party can cause a tribunal that is innocent of all knowledge of the fraud perpetrated on it to fall into jurisdictional error. The principles established in Muin and SZFDE were given recent effect by this Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; 248 FCR 159 (BBS15).

67    We therefore accept Mr Albert’s submission that although the Tribunal was unaware, and could not have been aware, that Mr Mohammed’s application for a Temporary Partner visa was yet to be determined, the Tribunal’s want of any fault in that regard cannot of itself conclude the issue of whether a subsequent decision might be held to be invalid in consequence of the Tribunal’s reliance of its earlier prima facie validity.

68    We further regard it to be settled law that a want of lawful basis for an administrative decision may become clear in retrospect in consequence of a judicial determination that later invalidates ab initio a condition precedent for the exercise of power. In Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; 167 CLR 637 (Park Oh Ho) the Minister had made a deportation order. Following that deportation order having been set aside by the Federal Court, a question arose as to whether the appellants’ detention, effected pursuant to the deportation order later declared void, had been unlawful. The High Court unanimously held that because the deportation order was void, the appellants’ detention was not and never had been lawful. The principle was recently given effect to, albeit in a different context, by the High Court in HFM043 v Republic of Nauru [2018] HCA 37; 92 ALJR 817.

69     Given the reasoning in Park Oh Ho, we have no cause to doubt that Australian law does not differ in respect of principle to the decision of the House of Lords in R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 (Evans). Mr Knowles did not submit otherwise. We accept its effect to be as summarised by Mr Albert in his submissions at [5] reproduced above at [42].

70    In Evans, Lord Slynn of Hadley spoke as follows (at 26):

Is it a defence to a claim for false imprisonment that he complied with the law as the court then said it was? The Solicitor General has adduced forceful arguments to the effect that the governor had no choice. He was bound to obey the law as expounded by the court not just once but several times. …

Whatever the answer the governor cannot be criticised for what he did [in reliance on subsequently overruled case law]. …

If the claim is looked at from the governor’s point of view liability seems unreasonable; what more could he have done? If looked at from the applicant’s point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?

Despite sympathy for the governor’s position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. …

The judgment of the Divisional Court in this case follows the traditional route of declaring not only what was the meaning of the section as at the date of judgment but what always was the correct meaning of the section.

71    Having regard to the High Court’s reasoning in Park Oh Ho and the House of Lords in Evans and the analogous reasoning in Muin, SZFDE, and BBS15, we are satisfied that it would be wrong to allow the Minister’s appeal simply on the basis that as at the time of its decision the Tribunal cannot be criticised for what it did. We accept entirely that the Tribunal cannot be fairly tasked with failing to anticipate that within weeks of its decision a Full Court of this Court would overturn Boayke-Danquah. Nor can it be faulted for not giving attention to any possibility that the Minister might consent to an appeal being brought out of time to revive Mr Mohammed’s application for a Temporary Partner visa.

72    However the fact remains that in Waensila a Full Court of this Court overturned Boayke-Danquah. Having regard to that decision, the Minister consented to the primary judge making orders remitting Mr Mohammed’s application for a Temporary Partner visa to the Tribunal to be determined according to law. In consequence of the consent orders made by the primary judge, the true legal position was that, at the time of the Tribunal’s decision, Mr Mohammed was merely thought by it to have had his application for a Temporary Partner visa determined. However as a matter of law, what the Tribunal did was to proceed to determine Mr Mohammed’s application for a Permanent Partner visa despite his valid and yet to be determined application for a Temporary Partner visa being before it.

73    The primary judge’s assessment of whether the Tribunal’s decision was invalid by reason of legal unreasonableness required her Honour 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 (see SZVFW per Nettle and Gordon JJ at [79]). In that regard the primary judge did not err by taking account of the position taken by the parties (including the orders they had consented to) regarding the restoration of Mr Mohammed’s review rights in respect of his application for a Temporary Partner visa. The Minister accepted that the FCCA’s invalidation of the MRT’s earlier decision necessarily became a factum upon which the principles of legal unreasonableness might operate (see above at [41]).

74    Mr Albert pithily summarised the gravamen of the first respondent’s position in this appeal as follows:

Put… in a way which reveals the gravamen of this case, the permanent visa is parasitic on the temporary visa. Like a parasite, the permanent visa only lives at law if the temporary visa was also alive at some time. In this instance, the Tribunal assumed that the temporary visa had been declared dead and decided the permanent visa application on that basis. At law, the temporary visa was still alive and, so the learned judge below concluded, it was legally unreasonable for the Tribunal not to have adjourned consideration of the parasitic visa, the permanent visa, in circumstances where the host visa, the temporary visa, was, at law, alive.

We agree. Our reasoning is as follows:

75    Having regard to the reasoning of Allsop CJ in Stretton at [5]-[7] and the succinctly expressed statements of Nettle and Gordon JJ in SZVFW at [83] (reproduced above at [24]) we are satisfied that it was unnecessary for the primary judge to have identified a particular error (and even less so fault) on the Tribunal’s part to found a conclusion of legal unreasonableness.

76    Error may be “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”: SZVFW per Nettle and Gordon JJ at [83].

77    That was the ultimate conclusion reached by the primary judge after having sought submissions from the parties.

78    Having regard to our observations (see above at [45]-[55]) regarding the terms, scope and policy of the statute which provide the context in which Mr Mohammed was entitled to have the order of his applications addressed, we are satisfied her Honour was not in error in that regard. The want of fault in the conduct of the Tribunal was not a reason for her Honour to exempt the legal circumstances before it from the general rule that where a valid combined application for both visas has been submitted for a decision maker to refuse an application for a Permanent Partner visa before the applicant has been determined to be eligible or ineligible for the grant of a Temporary Partner visa would be legally unreasonable.

79    In the actual circumstances before the primary judge, had her Honour concluded otherwise the result would have been legally incoherent.

80    Mr Mohammed’s proceeding had been filed in the court below simply as an application for judicial review of the Tribunal’s adverse decision in respect of his application for a Permanent Partner visa. It was the Minister, not Mr Mohammed, who was the moving party in (a) drawing Mr Mohammed and the Court’s attention to the decision in Waensila; (b) consenting to Mr Mohammed being granted leave to appeal out of time; and (c) consenting to orders setting aside the earlier decision of the MRT which had affirmed the Minister’s decision not to grant him a Temporary Partner visa and remitting that application to the Tribunal for redetermination according to law.

81    We accept that the Minister’s drawing attention to the decision in Waensila fell squarely within the duty of a model litigant, but Mr Knowles accepts that the Minister might properly have resisted, rather than consented to, orders granting Mr Mohammed leave to appeal out of time and remitting his application for a Temporary Partner visa to the Tribunal.

82    We need not speculate as to how matters might have evolved had such an approach been taken beyond noting that the long delay between the decision of the MRT (made on 18 December 2014) and its setting aside (on 12 October 2018) does not require us to conclude that a grant of leave to appeal out of time would have been inevitable.

83    The Minister having raised the Waensila point and consented to those orders vitiating the MRT’s decision in Mr Mohammed’s application for a Permanent Partner visa, the primary judge was then entitled to proceed on the basis that the Minister accepted that it was inherent in the scheme of the Migration Act there was a structural legal interrelationship between the two applications.

84    In any event for the reasons stated above we are satisfied that that that was the case: see above at [49]. In Mr Albert’s more colourful language, a Permanent Partner visa is “parasitic” on an applicant holding or having held a valid Temporary Partner visa.

85    It may be churlish to describe what followed as an aspect of the aphorism that “no good deed ever goes unpunished,” but upon the Minister consenting to those orders being made by the primary judge in a proceeding for judicial review of the Tribunal’s disposition of Mr Mohammed’s application for a Permanent Partner visa, it became the duty of the primary judge to approach his application on the basis that in law the Tribunal (albeit unknown to it) still had Mr Mohammed’s valid and as yet undetermined application for a Temporary Partner visa also before it when it had made its decision to affirm the Minister’s decision.

86    In those circumstances, the further orders made by the primary judge became inevitable. Her Honour’s decision was a routine application of the law that where a decision is no decision at all it cannot stand as a foundation for further decisions.

87    Thus as long ago as 1904 when the Privy Council gave consideration to the first application for leave to appeal to it from a decision of the High Court of Australia to His Majesty in Council, Lord MacNaghten delivering the judgment of their Lordships denying the special leave to appeal sought as having no reasonable prospect of success, spoke as follows in respect of an act the validity of which depended on a power of attorney exercised by a person of unsound mind (Daily Telegraph Newspaper Co Ltd v McLaughlin (1904) 1 CLR 479; [1904] AC 776 at 482):

But Lord Cranworth, L.C., on appeal, held that unless a lucid interval was proved she must be treated as tenant-in-tail. His Lordship’s view was that everything depended on the validity of the power of attorney, and that, if she was of unsound mind when she executed the power of attorney, “the substratum,” to use his Lordship’s expression, was “removed.” Now, if the power of attorney is mere waste paper, it is difficult to see how anything which rests on it as the foundation and groundwork of the whole superstructure can be of any validity, whether the transaction is beneficial to the lunatic or not.

88    To accept such a proposition is not to open a Pandora’s Box on retrospectivity.

89    The law also highly values certainty. But it serves that value by other means. It places time limits and other constraints on the circumstances in which applications may be made. Statutes of limitations prevent litigation being commenced after a period of time. Doctrines such as stare decisis and estoppels bar re-litigation of matters previously judicially determined, and Anshun estoppels bar contentions being advanced which should have been raised in earlier proceedings.

90    With particular regard to judicial review of administrative decisions there are generally fixed time limits within which such proceedings must be commenced, as there had been in the instance of Mr Mohammad’s application for judicial review of the Tribunal’s decision to affirm the Minister’s decision to refuse his Permanent Partner visa.

91    That proceeding was, however brought within time. Such contentions as the Minister might have advanced to oppose leave to apply out of time to incorporate an appeal against the earlier MRT decision were not advanced. Instead the Minister consented to the primary judge making orders setting aside that decision. That was a generous approach to take and we make no criticism of it.

92    We reject that in bringing this appeal the Minister can be criticised for employing a back-door way of resisting a concession he had earlier made. But an order of a court, including one made by consent, operates in terms. The legal effect of a consent order invalidating an administrative decision is not confined to the purposes of the parties proposing it. In this instance, the legal effect of the consent order was that, as at the time of the Tribunal’s decision, although unknown to it, Mr Mohammed also had an application for a Temporary Partner visa before it which had not been finalised.

93    In consequence of the consent orders made by the primary judge, both of Mr Mohammed’s applications for review had yet to be determined. Having regard to the terms, scope and purpose of the statutory scheme, the primary judge was not in error to hold that the Tribunal’s decision to dismiss Mr Mohammed’s application for a Permanent Partner visa because of his want of a yet to be determined Temporary Partner visa was legally unreasonable. It was a course “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” (SZVFW at [69] per Gageler J, citing Li at [71], in turn citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064).

94    We reject Mr Knowles’ submission that it would be open to Mr Mohammed to submit a further application for a Permanent Partner visa suffices as a valid basis to uphold the Minister’s appeal. Had a fee not been required for such an application a conclusion of legal unreasonableness, having regard to the whole of the circumstances before the primary judge, may not have been warranted; but her Honour expressly and properly recognised that that was not the case. The fees totalled more than $10,000. Such a cost is not inconsequential and, while we have no evidence of Mr Mohammed’s economic circumstances the total he would be required to pay is far greater than we think can plausibly be contended to put in doubt the primary judge’s conclusion.

95    We would dismiss the appeal. We would order that the Minister pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    27 March 2019