Irrationality, uninformed speculation and lack of probative evidence: an important new judgment from the Federal Court

On 16 August 2019, a Full Court of the Federal Court handed down judgment in Assistant Minister for Immigration and Border Protection v Splendido. The case is important because it builds on existing Federal Court jurisprudence on what may variously be described as the ‘irrationality’ and ‘no evidence’ ground(s) of judicial review. The two judgments given by the Court (one by Mortimer J, with whom Moshinsky J agreed, and one by Wheelahan J) reaffirm existing jurisprudence that holds, in effect, that the ‘irrationality’ and ‘no evidence’ labels in truth refer to a single form of jurisdictional error that arises when an administrative decision maker arrives at a decision in breach of an implied statutory precondition that requires it to make factual findings that have some basis in rationally probative material (as opposed to being the product of unexamined assumptions or uninformed speculation) before reaching its decision. That is, the judgments reaffirm that where the exercise of a statutory power is conditioned upon the decision maker’s reaching a state of satisfaction with respect to some matter (whether the matter is a pure question of fact or involves the making of some kind of value judgment), that state of satisfaction must be reached by reference to findings of fact made on the basis of rationally probative material.

The facts

The respondent was born in Italy and immigrated to Australia with his parents at the age of two. During the first 46 years of his life, the respondent completed primary and secondary school, established a business as a painter and decorator, and raised six children; he had no history of mental illness, substance abuse or criminal behaviour.  For reasons that were not clear from the material before the Court, his life then changed markedly for the worse. In 2011, he was convicted of a range of drug possession offences. Then between 2012 and 2015, he was convicted of further drug offences, as well as a number of property offences and offences involving violence. As a result of these convictions, the respondent spent a substantial period of time in prison.

On 2 December 2015, the visa that authorised the respondent to continue living in Australia was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), on the grounds that the respondent had a ‘substantial criminal record’ within the meaning of s 501(6)(a). The respondent then made representations to the appellant Assistant Minister under s 501CA(3) as to why the decision to cancel his visa should be revoked. The Assistant Minister declined to revoke the cancellation of the respondent’s visa. In reaching this decision, the Assistant Minister made a number of findings, including that there was a ‘likelihood’ that the respondent would commit further violence-, drug- and property-related offences. The Assistant Minister therefore concluded that there was not ‘another reason why’ the decision to cancel the respondent’s visa should be revoked (within the meaning of s 501CA(4)(b)(ii)).

As the Court noted, the material before the Assistant Minister on the question of revocation was unusually sparse. In particular, the Assistant Minister did not have the benefit of any sentencing remarks made in relation to the respondent, nor was there any evidence from a corrections officer, social worker, medical practitioner or psychologist to shed light on why the respondent had so abruptly turned from an apparently law-abiding lifestyle to one involving moderately serious criminal offending.

Primary judgment

In the Federal Court, Steward J was ‘not satisfied that there existed a “skerrick” of evidence, or “some basis” for the findings reached that there existed a “likelihood” that the applicant would re-offend and, accordingly, that he represented an “unacceptable risk of harm to the Australian community”.’ In this regard, his Honour stated that ‘the bare recital of conviction and sentence in and of itself, and whether taken individually or cumulatively with the other offences, did not rationally support or not support, the Minister’s finding about the risk of harm’. Further, Steward J noted that the answers to a number of important questions were unknown:

Whether these violent acts formed a pattern of behaviour is unknown. Whether they constituted similar acts of violence involving the same or similar victims is unknown. Whether they revealed a trend of increasing or decreasing degrees of violence is unknown. Whether they were the product of, or affected by, the taking of drugs is unknown. Why the applicant at the age of 46 commenced for the first time committing crimes is unknown; at best we know that it started with the possession of prohibited drugs. What mitigating circumstances existed, if any, relating to why the applicant’s life changed, and in relation to each act of violence, is unknown. Upon investigation it may be found that no mitigating circumstances existed and that the Minister’s findings were well justified. But absent a form of investigation into the quality and circumstances of the convictions, the bare recital of their historical existence in the Certificate and the resultant sentence, whether considered individually or in aggregate, did not constitute “some basis” for a prediction about future behaviour. This material was simply too vague to ground rationally findings about the applicant’s future behaviour.

His Honour therefore held that the Assistant Minister’s decision not to revoke the cancellation of the respondent’s visa was tainted by jurisdictional error in the form of the Assistant Minister’s legally irrational finding with respect to the likelihood of the respondent’s reoffending.

The appeal

Justice Mortimer commenced by characterising the Assistant Minister’s finding with respect to the ‘likelihood’ that the respondent would reoffend as a ‘finding of fact’ to the effect that ‘it was probable that [the respondent] would re-offend in a serious way’. Like Steward J, her Honour held that this finding lacked any evidentiary basis, stating that the Assistant Minister’s ‘approach would be rational and reasonable, if there was a probative basis in the material for such a qualitative assessment, which there was not.’ Justice Mortimer also made a number of general observations about the availability of the ‘no evidence’ and ‘irrationality’ grounds of review. Thus her Honour stated that:

[I]t remains the case that the exercise of a statutory power of an administrative character, including a power that is discretionary in nature, will be beyond the jurisdiction of the repository if a court determines that Parliament did not intend the exercise to be valid unless certain express or implied conditions on the exercise of that power were complied with … It is also clear that in the absence of an express intention to the contrary (if one could constitutionally be given, which may be doubtful), an exercise of power which depends on the assessment and finding of facts for its exercise requires there to be probative material on which those findings can be made.

Justice Mortimer went on to state that ‘the Assistant Minister’s consideration and exercise of power must be grounded in probative material, and not in speculation or guesswork, or (worse) assumptions based on material incapable of supporting those assumptions’. That is, the Assistant Minister’s conclusion with respect to the respondent’s likelihood of reoffending was a legally infirm stepping stone that led to his ultimate decision, such that that decision was tainted by jurisdictional error. Similarly, Wheelahan J concluded that:

I do not consider that the combination of matters that were before the Minister … provided a rational, probative foundation for a conclusion that there is a probability that the respondent will reoffend in the way contemplated by the Minister’s reasons. That conclusion was central to the Minister’s decision that there was not another reason why the cancellation of the respondent’s visa should be revoked, and the absence of a rational, probative basis for that evaluative conclusion was a jurisdictional error.

The approach taken by the Court in Splendido is consistent with the approach taken in earlier cases, such as ARG15 v Minister for Immigration and Border ProtectionGill v Minister for Immigration and Border Protection and Hands v Minister for Immigration and Border Protection. Those cases emphasised that where a factual finding ‘leads to the end result’ of an exercise of administrative power or assumes a ‘central importance’ in the decision maker’s reasoning process, jurisdictional error will arise if the finding is ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’ or if there is ‘no evidence at all to support [it], and all evidence being to the contrary to a reasonable decision-maker.’ In other words, an administrative decision will be jurisdictionally infirm if it relies on a finding of fact that has no rational support or that is made in the face of evidence that could only rationally result in a different finding. As Mortimer J explained in Splendido, this is because it is generally an implied precondition to the exercise of an administrative power that the decision maker first engage in a rational process of evaluating the case before it and making findings of fact that have some basis in reason.

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