Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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  • Li was an applicant for a skill independent overseas student visa which required a skills assessment from Trade Recognition Australia (TRA).
  • Li’s application was initially refused by a delegate of the Minister but Li applied for review by the Migration Review Tribunal (MRT).
  • Li (through her migration agent) informed the MRT that while her assessment by the TRA was unsuccessful it was also incorrect and the MRT should therefore adjourn making a decision until the TRA had reconsidered Li’s assessment.
  • The MRT did not agree and had considered that Li had had enough opportunities to present her case.  The MRT refused Li’s application, only for the TRA to approve Li’s resubmitted application for assessment.


  • Should the MRT have granted Li the sought adjournment until the TRA assessment had been completed?


  • French CJ held that MRT had not taken into consideration the possibility that there was a high probability that the TRA would complete Li’s skills assessment.
  • Based on this rationale, French CJ further held that the MRT’s decisions was one of “arbitrariness …which rendered it unreasonable.”
  • Hayne, Bell and Kiefel JJ refined the idea that unreasonableness is linked with rationality and logic and an “unreasonable decision” is one that lacks “intelligible justification”.
  • Gageler J held that authority to make decisions which is conferred by a statute must be “exercised according to law and to reason.” Based on this, his Honour held that MRT had made its decision without a genuine consideration of Li’s argument.


“[Unreasonableness] reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusion about the correct or preferable decision. However the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.”

(French CJ at 351)

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