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On 8 August 2018, the High Court handed down its judgment in the case of Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

The High Court’s decision provided a restatement of the general principles relating to the law of whether an administrative decision maker’s decision could be said to be legally unreasonable, the role of an appellate Court in considering an alleged error of law and the scope of the powers available to the Administrative Appeals Tribunal under s 426A of the Migration Act 1958 (Cth).

A (brief) background of the proceeding

The case concerned two married Chinese nationals, who had travelled to Australia and claimed to be refugees (the Applicants). Having lodged their applications for protection visas, neither applicant attended their scheduled interview with the Department of Immigration and Border Protection to discuss their claims of fearing harm in China. Both protection visa applications were refused.

The applicants then sought review of the decision to refuse the protection visas in the (then) Refugee Review Tribunal (now the Administrative Appeals Tribunal). Following the making of that application, the Tribunal wrote to the Applicants and invited them to attend a hearing. The Applicants did not attend that hearing, so the Tribunal proceeded to determine their application without giving them a further opportunity to appear (pursuant to s 426A of the Migration Act). Owing to the lack of information before it, the Tribunal was not satisfied that the applicants were owed Australia’s protection obligations and affirmed the decision under review.

The Applicants sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The Circuit Court allowed the application, holding that the decision by the Tribunal to proceed in the absence of the applicants was legally unreasonable and that the decision of the Tribunal to affirm the decision under review was consequently affected by jurisdictional error.

The Minister appealed the Circuit Court’s judgment in the Federal Court of Australia. The Federal Court dismissed the appeal, holding that the Minister had not demonstrated an appellable error in the Circuit Court’s judgment. The Federal Court considered that the primary Judge’s decision was “evaluative” in nature and accordingly the same principles applied as in an appeal from a discretionary judgment per the High Court’s decision in House v The King (1936) 55 CLR 499.

The Minister then sought special leave in the High Court. The High Court granted special leave in September 2017 and the appeal in the matter was heard in March 2018.

The High Court’s decision

The High Court allowed the Minister’s appeal. In summary, the Court held that:

  • Whether or not a decision of an administrative decision-maker was legally unreasonable is a question of law. The consequence of this is that the question “was the decision legally unreasonable?” can only have one correct answer—either it was, or it wasn’t.
  • However, the legal conclusion that a decision is, or is not, legally unreasonable, will be informed by the particular facts of the case.
  • The Circuit Court had erred in holding that the Tribunal’s decision to proceed in the applicant’s absence was legally unreasonable in the circumstances of this case, where the Tribunal had complied with its obligations to notify the Applicants of the hearing date and in a manner specified by the Migration Act.
  • The Federal Court also erred by requiring the Minister to demonstrate a House v The King type of error. Rather, the only question for the Federal Court to answer was whether the Tribunal’s decision was legally unreasonable.


The High Court’s decision provides important guidance in three key areas. First, it provides a restatement of the general principles of legal unreasonableness governing the exercise of a discretionary power as it applies to decision making by all administrative decision-makers. The High Court’s decision makes it clear that a finding of unreasonableness will be dependent on the scope, purpose and object of the statute from which the power is drawn, as well as the circumstances of the case. It is not sufficient to compare similarities with an earlier case, or that the power was exercised in a way that disadvantaged a party.

Secondly, it clarifies the breadth of the power available to the Tribunal in its exercise of the power under s 426A of the Migration Act (and the equivalent provision in s 362B of the Migration Act) in cases where review applicants fail to attend a Tribunal hearing.

Thirdly, it confirms the principle that where an appellate Court hears an appeal by way of rehearing from the lower Court, with respect to an alleged legal error by the original administrative decision-maker, the appellate Court must determine for itself whether or not the primary Judge’s decision was legally correct.

Sparke Helmore Lawyers acted for the Minister at first instance, on the appeal to the Federal Court and in the High Court proceedings.

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