Appellate Review Down Under: Minister for Immigration and Border Protection v SZVWF  HCA 30
In August, I posted on an interesting and potentially very important United Kingdom Supreme Court decision on appellate standards of review. In R (AR) v Chief Constable of Greater Manchester Police  UKSC 48, Lord Carnwath concluded for a unanimous court that in an appeal from an application by the High Court of the proportionality test the appellate court need not conduct the proportionality analysis afresh. This conclusion was supported by the “general policy consideration that the purpose of the appeal is to enable the reasoning of the lower court to be reviewed and errors corrected, not to provide an opportunity for the parties to reargue the same case” (at para. 57).
There is a fascinating contrast between AR and the recent decision of the High Court of Australia in Minister for Immigration and Border Protection v SZVWF  HCA 30.* Here, the intermediate appellate court (the Full Court of the Federal Court of Australia) had taken the AR approach to the determination of a first-instance reviewing court (the Federal Circuit Court) that a decision of the Refugee Review Tribunal was legally unreasonable. The High Court unanimously took the view that this was erroneous.
First, let me briefly outline the Australian approach to legal unreasonableness. In Australia, a legal limitation of reasonableness is implied into statutory grants of discretionary power to public bodies, because “[t]he legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably” (Minister for Immigration and Citizenship v Li  HCA 18, at para. 63, per Hayne, Kiefel and Bell JJ). Action that is legally unreasonable is thus ultra vires because it falls outside the four corners of the statutory authorisation granted by the legislature.
A reviewing court may intervene on the basis of legal unreasonableness where a decision-maker has “committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense” (Minister for Immigration and Citizenship v Li  HCA 18, at para. 72, per Hayne, Kiefel and Bell JJ). It has also been suggested that the Supreme Court of Canada’s formulation of reasonableness review in Dunsmuir – justification, intelligibility and transparency in the reasoning process and a decision falling within a range of possible, acceptable outcomes – can assist Australian courts charged with applying the concept of legal unreasonableness (Minister for Immigration and Border Protection v SZVWF  HCA 30, at para. 10, per Kiefel CJ and at para. 82, per Nettle and Gordon JJ).
Unsurprisingly, it has thus been said that Australian legal unreasonableness is “context-specific” (Minister for Immigration and Border Protection v SZVWF  HCA 30, at para. 52, per Gageler J) and “invariably fact dependent” (Minister for Immigration and Border Protection v Singh  FCAFC 1, at para. 42), requiring an “evaluative judgement” by the reviewing court (Minister for Immigration and Border Protection v Stretton  FCAFC 11, at para. 5, per Allsop CJ), guided by “the scope and purpose of the statute conferring the discretionary power and its real object” (Minister for Immigration and Citizenship v Li  HCA 18, at para. 67, per Hayne, Kiefel and Bell JJ). In all cases, “the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute” (Minister for Immigration and Border Protection v SZVWF  HCA 30, at para. 134, per Edelman J).
Second, Australian appellate courts deferentially review exercises of discretion by first-instance judges, in accordance with the principles set out in House v The King:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance ((1936) 55 CLR 499 at 504-505).
What counts as “discretion” for these purposes has been the subject of some debate (see Gageler J at paras. 43-50 and Edelman J at paras. 143-149) and is to be contrasted with “law”, that is those circumstances in which “the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome” (at para. 49, per Gageler J). On such issues, no deference is paid by appellate courts to first-instance courts. Indeed, the appellate court “cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions” (Dearman v Dearman (1908) 7 CLR 549 at 564). Deference will only be due where there has been an exercise of discretion, defined broadly enough to apply wherever “the decision-maker is allowed some latitude as to the choice of the decision to be made” (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205).
Third, here the Full Court (the intermediate appellate court) had held that, given the nature of review for legal unreasonableness, deference was due to the Federal Circuit Court. For the appellant to win on appeal, he would have to demonstrate that “the primary judge had made an error in the process of evaluating whether the Tribunal’s decision was unreasonable” (at para. 17, per Kiefel CJ). The Full Court justified its position by reference to “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” ( FCAFC 33, at para. 45).
The High Court unanimously rejected this position. The Full Court’s role was “to examine the administrative decision of the Tribunal to determine whether the primary judge was correct to conclude that the administrative decision was legally unreasonable” (at para. 117, per Nettle and Gordon JJ). By its nature legal unreasonableness relates to the scope of a decision-maker’s statutory authority and is, accordingly, “a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer (at para. 54, per Gageler J). As Edelman J put it: “Like questions of construction of legislation, contracts, wills, or trusts, it was a question about which it is readily acknowledged in this country that there can only be one right answer and an appeal from the decision is concerned with its correctness” (at para. 154).
The fact that adjudicating on a claim of legal unreasonableness requires an evaluative judgement by the reviewing court “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” (at para. 85, per Nettle and Gordon JJ). There is “no latitude of choice: on the evidence adduced at trial, the determination of the primary judge can only be that the alleged want or excess of statutory authority has been established or has not been established” (at para. 55, per Gageler J). The question of legal unreasonableness can be constrasted with “questions such as the sentence to be imposed for a crime or the general damages to be awarded for personal injury where the uncertainty of result is a significant factor, sometimes described as a circumstance where there is no right answer, which requires judicial restraint on an appeal from the decision” (at para. 154, per Edelman J).
Of course, in some circumstances the first-instance judge will have an advantage over the appellate judge(s), by virtue of having heard live evidence (Warren v Combes (1979) 142 CLR 531 at 552). But these considerations do not apply in judicial review cases:
Natural limitations on an appellate court’s ability to be satisfied of error on the part of a primary judge inhering in the need for the appellate court to proceed on the record play no part in this appeal. They have little impact in practice on the determination of an appeal from a judgment given in a proceeding for judicial review of administrative action. Ordinarily, as here, the trial of a judicial review proceeding will have been conducted wholly or substantially by reference to documentary and affidavit evidence which an appellate court is in as good a position to evaluate as was the primary judge (at para. 34, per Gagler J).
It might be said that the High Court of Australia, by relying on a formal distinction between matters of “law” and “discretion” has rejected the policy-based rationale offered by Lord Carnwath in AR. That Lord Carnwath relied explicitly on policy factors is unsurprising, in light of recent British jurisprudence (in the context of judicial review of the tribunal structure created by the TCEA 2007) privileging proportionate dispute resolution over jurisdictional error and highlighting the underlying policy rationale for the distinction between law and fact.
What is perhaps more surprising is that the High Court of Australia and the Supreme Court of Canada have ended up in the same position. In Canada, as Edelman J notes, appellate judicial review is de novo. The appellate court steps into the shoes of the first-instance reviewing court (Agraira v. Canada (Public Safety and Emergency Preparedness)  2 SCR 559, at para. 46). In appellate review generally, however, Canadian appellate courts have been instructed to review findings of fact and many findings of mixed law and fact only for palpable and overriding error, because “the numerous policy reasons which support a deferential stance to the trial judge’s inferences of fact, also, to a certain extent, support showing deference to the trial judge’s inferences of mixed fact and law” (Housen v Nikolaisen  2 SCR 235, at para. 32).
The “certain extent” qualification is important, of course, but it can nonetheless be said that whereas the High Court of Australia draws a distinction between questions of “law” and “discretion” for the purposes of determining the scope of appellate review, the Supreme Court of Canada relies on policy-based justifications. This being the case, it is surprising that in the area of judicial review, the Canadian courts have not yet considered policy-based justifications for restricting the scope of appellate review.
* Many thanks to commenter Aaron Moss for drawing this decision to my attention.
This content has been updated on October 3, 2018 at 12:51.