Decisions Cannot Be Arbitrary





In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that decision by the Minister cannot be arbitrary even in relation to decisions which are in the minister’s discretion.  Flick J concluded (paragraphs 370 – 374):

Irrespective of any requirement to proceed to make a decision upon the basis of the facts peculiar to SZQRB when those facts have been brought to his attention and when they have in fact been assessed, the Minister could also not make a decision free of considering “any other circumstances”.  A decision divorced from any circumstances peculiar to a claimant and divorced from “any other circumstances” is properly to be characterised as a decision based upon nothing – other than, perhaps, personal whim.

371                  The source of the constraint on the power conferred upon the Minister by s 91L in the present proceeding is ultimately to be found in the Migration Act itself and (particularly) in the terms of s 91L and also in the common law requirements of procedural fairness.  These constraints are such that he cannot decide “not to consider, or not to further consider, the exercise of any of” his personal “non-compellable public interest powers” free of a consideration of materials placed before him and in fact considered or free from a consideration of “any other circumstances”.

372                  An exercise of the power “irrespective of” relevant material which has in fact been considered would be an “arbitrary or fanciful” exercise of power: Hughes and Vale Pty Ltd v State of New South Wales (1953) 87 CLR 49 at 68 per Dixon CJ.  It would also be an exercise of power which would not promote the objects and purposes of the Act and an exercise of power without regard to Australia’s international obligations or the “public interest”.

373                  It is respectfully concluded that the Minister’s decision in the present proceedings not to exercise the power conferred by ss 91L and 195A and to do so irrespective of SZQRB’s known personal circumstances was “arbitrary.  The weight to be given to the claims being made and the account provided by a claimant, it may be accepted, is a matter for the Minister alone to consider.  But the Minister could not make a decision in the present proceeding “irrespective of” that which is relevant and considered by the Minister to be relevant.

374                  In so concluding it is recognised that there is a tension between the present conclusion and the decision of the Full Court in SZQDZ v Minister for Immigration and Citizenship, [2012] FCAFC 26, and, in particular, the Full Court’s conclusions that the Minister did not “have any obligation to take the reviewer’s assessment or recommendation into account” and its conclusion that the Minister “was not bound to act on the assessment or recommendation”: [2012] FCAFC 26 at [34] to [39].  The Full Court also concluded that the Minister “can ignore entirely a reviewer’s assessment and recommendation”: [2012] FCAFC 26 at [44]. But such conclusions of the Full Court, it is respectfully considered, do not address those circumstances where the Minister has in fact taken into account an assessment and recommendation and has not “ignored” the assessment and recommendation.

Barbara Davidson