Minister for Immigration and Citizenship v Li
High Court of Australia · 2013
Minister for Immigration and Citizenship v Li [2013] HCA 18
A visa applicant asked a tribunal to wait for a review of her skills assessment and was refused. When is a refusal like that unreasonable in law, and not just a decision a court would have made differently?
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 the High Court gave four sets of reasons and unanimously allowed the Minister's appeal, applying Li. Kiefel CJ restated the Li formulation, said that an inference of unreasonableness is not to be drawn only where a decision appears irrational, and described the test as "necessarily stringent" ([10]-[11]). Nettle and Gordon JJ said that abuse of statutory power is not limited to a decision that is manifestly unreasonable or irrational if not bizarre, that a conclusion of legal unreasonableness may be outcome focused where there is no evident and intelligible justification ([82]), and that Li's analogy with House v The King did not state that the principles on appellate review of a judicial discretion also apply to judicial review of administrative action ([86]-[87]). Gageler J said that nothing in Li is inconsistent with his reasons ([57]) and that, except to the extent a statute specifically permits (he gives s 5(2)(j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) as an example), a judge reviewing administrative action must not form his or her own conclusion on whether power was exercised in a lawful but abusive way ([58]). So Li's formulation was applied and not displaced; the emphasis on stringency is Kiefel CJ's, and the narrow reading of the House v The King analogy is that of Nettle and Gordon JJ.
In GXT25 v Minister for Immigration and Citizenship [2026] HCA 32 Gageler CJ, Steward and Jagot JJ rejected a ground of legal unreasonableness and illogicality against a delegate's refusal of a protection visa. Their Honours said that the question ultimately involves deciding whether, on the material, the conclusion reached was open, and that where different minds might reach different conclusions it cannot be said to be legally unreasonable. They then quoted the sentence at [76] of Li ([44]).
What happened?
Ms Xiujuan Li applied on 10 February 2007 for a skilled residence visa, one criterion for which was a favourable skills assessment by a relevant assessing authority, Trades Recognition Australia (TRA) ([33]). A delegate refused the application because some of the information she had provided was not genuine ([33]-[34]). She sought review by the Migration Review Tribunal ([33]).
On 18 January 2010 her migration agent told the Tribunal that a second TRA assessment had been unfavourable, said it contained two fundamental errors, said that review by TRA had been sought, and asked the Tribunal to "forbear from making any final decision" until that application was finalised ([38]). The Tribunal decided on 25 January 2010 ([40]). It said that she had "been provided with enough opportunities to present her case" and was "not prepared to delay any further" ([40]). TRA gave a favourable assessment on 12 April 2010 (French CJ [21], n 56).
The Federal Magistrates Court (Burnett FM) held the decision unreasonable "in the Wednesbury Corporation sense" and quashed it ([41]). The Full Court of the Federal Court dismissed the Minister's appeal (French CJ [2]; joint reasons [41], [45]). The Minister appealed to the High Court by special leave (French CJ [2]).
What did the Court decide?
The High Court dismissed the Minister's appeal with costs, so the orders quashing the Tribunal's decision by certiorari and remitting the matter by mandamus stood (French CJ [2], [32]; joint reasons [87]; Gageler J [125]). The three sets of reasons reach that result by different routes, which are set out under the Proposition.
Proposition
What is the principle?
Three sets of reasons addressed legal unreasonableness in the exercise of a statutory discretion, and they are not identical. Hayne, Kiefel and Bell JJ, in joint reasons, said that the legal standard of reasonableness "must be the standard indicated by the true construction of the statute" ([67]); that the legal standard of unreasonableness "should not be considered as limited to what is in effect an irrational, if not bizarre, decision" ([68]); and, reasoning from the analogy with House v The King, that "Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification" ([76]). They added that, properly applied, the standard "does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker" ([66]). Applying it to the Tribunal's refusal to adjourn under s 363(1)(b) of the Migration Act 1958 (Cth), they inferred error because "the result itself bespeaks error" ([85]). French CJ held the refusal unreasonable "in the limiting sense" of a conclusion so unreasonable that no reasonable authority could ever have come to it ([28], [31]), and separately held that the first respondent had been denied procedural fairness ([21]). Gageler J reasoned from a statutory implication of reasonableness, said that "the stringency of the test remains" ([113]), and held that "No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment" ([124]).
Why does this case matter?
Li is a standard reference for legal unreasonableness, and the High Court has applied it since in migration cases (SZVFW and GXT25), so an answer that stops in 2013 is incomplete.
Exam and application relevance
In a problem about a refused adjournment or another procedural discretion, an answer can start from the statute's scope and purpose ([67]) and then ask whether the decision has an evident and intelligible justification ([76]), citing the Justices whose reasons carry each step. The later treatment in SZVFW adds Kiefel CJ's emphasis on stringency. The facts were particular: the Tribunal's stated reasons were the opportunities already given and its unwillingness to delay further ([40]), and the joint reasons found it not apparent how that conclusion was reached given the facts and the statutory purpose of the power to adjourn ([82]). Compare your facts with those.
Check your understanding
1. Which Justices said that unreasonableness may be applied to a decision lacking an evident and intelligible justification, and at what paragraph? 2. In what words did French CJ describe the unreasonableness he found, and what did he separately hold about procedural fairness? 3. What did Gageler J say at [113] about the frequency of findings of Wednesbury unreasonableness? 4. What did Nettle and Gordon JJ say in SZVFW about the analogy with House v The King drawn in Li, and which Justice in SZVFW described the test as "necessarily stringent"?