FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Li [2012] FCAFC 74

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD AND LOGAN JJ

1        We have had the benefit of reading in draft the reasons for judgment of Collier J. We agree with her Honour that this appeal should be dismissed with costs. Our reasons for dismissing the appeal differ in some respects from those of her Honour.

2        A summary of the factual background to this appeal, of the reasons of the Migration Review Tribunal (MRT) and those of the Federal Magistrates Court, appears in the judgment of Collier J. We gratefully adopt that summary.

3        The grounds of appeal are set out in her Honour’s judgment. As her Honour observes, the key question for determination is whether a decision of the MRT to refuse to adjourn a hearing can, in particular circumstances, constitute an error going to the jurisdiction of that tribunal, so as to warrant quashing its decision? The first respondent, Ms Li, succeeded in persuading the learned federal magistrate that the MRT had unreasonably refused to grant her an adjournment and that this refusal amounted to a jurisdictional error. She maintained that position on the hearing of the appeal.

4        Having regard to the submissions made by the Minister, answering this key question necessarily entails consideration of the meaning and effect of a number of provisions of the Migration Act 1953 (Cth) (the Act), particularly s 353, but also s 357A(3) to each of which the learned federal magistrate made reference. Section 353 provides:

353    Tribunal’s way of operating

(1)    The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

5        Section 357A, which is found in a different Division of the Act to s 353, provides:

357A    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

6        The MRT is a creature of statute. In relation to its counterpart, the Refugee Review Tribunal (RRT), which deals with protection visa related matters, the High Court has held that the “core function” of that tribunal is to “review the decision” which is the subject of a valid application under the Act: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18]; see also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR). So, too, with the MRT is its “core function” one of reviewing a decision which is the subject of a valid application, in the case of that Tribunal, under s 347 of the Act: s 348 of the Act. Where such an application is made and subject to an exception found in s 348(2) of the Act, which is not presently material, the MRT must review the decision in question.

7        The Minister’s submissions on the appeal entailed the concession that, under the general law, a refusal by an administrative tribunal to grant an adjournment might, in some circumstances, constitute a denial of procedural fairness and a jurisdictional error for the purposes of s 75(v) of The Constitution. That such a denial might amount to jurisdictional error was decided in Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 (Aala). In turn, in the case to which the Minister referred in making his concession, NAHF v Minister for Immigration (2003) 128 FCR 359 at 365-366 (NAHF), Hely J concluded that a refusal to grant an adjournment might and, in the circumstances of that case, did constitute a denial of procedural fairness amounting to jurisdictional error. In so doing, his Honour sourced the procedural fairness obligation to the general law as it applied in the circumstances of that case, rather than in s 420 of the Act, which, then as now, was the analogue, applicable to the RRT, of s 353. The Act did not then include the present s 357A.

8        The Minister’s concession was qualified by the submission that this general law position was subject to any statutory prescription of the content of the procedural fairness obligation applicable to the administrative tribunal. More particularly, his submission was that each of s 353 and s 357A(3) of the Act was but an “exhortation” incapable of giving rise to any substantive right. The Minister further submitted that, absent some requirement arising from s 357A(3), there was no connection between the conclusion by the learned federal magistrate that the Tribunal had exercised a procedural discretion unreasonably in deciding not to adjourn and his Honour’s ultimate conclusion of jurisdictional error.

9        Whether and to what extent the MRT’s discharge of its core function is attended with a procedural fairness obligation will depend not just upon the “infinite variety of circumstances that may exist” but also upon “giving full effect in every case to the particular statutory framework within which the proceeding takes place”: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 per Kitto J.

10        As to that statutory framework, in SZGUR at [19] French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed, described what is found in the RRT analogue of s 353, s 420, as a “requirement imposed on the Tribunal, in the discharge of its core function of reviewing Tribunal decisions” (emphasis added). The characterisation of s 420 and hence s 353 as a source of “requirements” is not ours but rather that of the plurality of the High Court. That becomes important when considering what was earlier said of s 420 by the Full Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [15] (SZMOK). Section 420 of the Act was there described as an “exhortative provision” which did not create rights or grounds of review additional to specific rights of review expressly given by the Act. So, too, was s 422B(3). The direct analogues of s 422B(3) of the Act, so far as the MRT is concerned, is 357A(3).

11        In so describing s 420 and s 422B(3) in SZMOK, the Full Court cited in support a remark made by Hayne J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [158] (Eshetu). In that passage, his Honour expressed agreement with the reasons for judgment of Gleeson CJ and McHugh J in that case, adding that, in particular, he agreed that, “s 420 of the Act does not create rights or a ground of review additional to those given in s 476”. The basis for that proposition was explored in depth by Gleeson CJ and McHugh J in their joint judgment: Eshetu at [46] to [52]. Their Honours approved statements made by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 (Sun Zhan Qui) at first instance as to what they termed “the relationship, or lack of it, between ss 420 and 476” of the Act. Gummow J, at [106], and Callinan J, at [179], likewise approved those statements. Indeed, the description of s 420 of the Act as “exhortatory” is ultimately referable to a description of that section given by Lindgren J in Sun Zhan Qui.

12        In their joint judgment in Eshetu and by reference to what was said of provisions like s 420 and s 353 in Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26 (Qantas Airways Limited v Gubbins), Gleeson CJ and McHugh J observed at [40] that such provisions are “intended to be facultative, not restrictive. Their object is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.”

13        It is important to remember that the statutory framework in which s 420 appeared at the time when Eshetu was decided was quite different from what is found in the Act as later amended and as applicable to the present proceeding. The then s 476 sought to limit available grounds of judicial review. The extent to which that section had achieved this, having regard to s 420, had proved controversial in this Court, as the judgments of this Court cited by Gleeson CJ and McHugh J in their joint judgment in Eshetu highlight. Eshetu settled that controversy in relation to the Act as it then stood.

14        So far as the former s 476 and its attempted truncation of grounds of judicial review are concerned, Eshetu was decided prior to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20) and, more recently yet, in relation to review on the basis of illogicality or irrationality, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). Further, the Act, including s 476, as it stood at the time when Eshetu was decided was later amended in yet other ways directed to the restricting of judicial review. As Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (S157) reveals, those later amendments have to be read subject to The Constitution and, in particular, to the constitutionally entrenched jurisdiction, vested in the High Court by s 75(v), to issue constitutional writs in respect of decisions made by officers of the Commonwealth which are attended with jurisdictional error. The provisions with respect to judicial review found in the present Part 8 of the Act are the culmination of an Hegelian dialectic between the various branches of Federal government as to the limits under The Constitution of Parliament’s ability to restrict the judicial review of decisions of the Minister, his delegates and tribunals exercising a merits review jurisdiction in their place (that is, where the boundaries of irreducible minimum standards might lie). In the present case, in the judicial review of the MRT’s decision, the Federal Magistrates Court exercised an original jurisdiction which was co-extensive with that exercised by the High Court under s 75(v) of The Constitution.

15        In Qantas Airways Limited v Gubbins at p 30, Gleeson CJ and Handley JA observed of the words “equity, good conscience and the substantial merits of the case” that they were “not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”. In the statutory context in which they appeared in that case, such language was not regarded by Gleeson CJ and Handley JA as freeing the tribunal concerned from a duty to apply the general law in making its decisions.

16        As was recognised in Eshetu, s 353 of the Act is a provision of an analogous kind to that considered in Qantas Airways Limited v Gubbins. Its specification of the “tribunal’s way of operating” does not and, in light of S157, could not excuse jurisdictional error for the purposes of s 75(v) of The Constitution. The MRT’s “core function” always remains that of conducting a review on the merits according to law. Equally, the analysis of this type of provision in Eshetu, in Qantas Airways Limited v Gubbins and in Sun Zhan Qui makes it plain that, subject to the Act and to judicial review for jurisdictional error, Parliament’s intention is for the MRT flexibly to adapt its procedures to suit the circumstances of a particular case. In this particular sense, s 353 has no fixed content.

17        That acknowledged, s 353 is not devoid of content. It permits, for example, the MRT to make decisions based on material which would not be admissible in evidence in a court exercising judicial power. If, for example, the MRT had hearsay evidence before it supporting an application and refused to act on that evidence for no other reason than a view that the Tribunal could only act on admissible evidence it would not just ignore an exhortation. It would fail to conduct a review in accordance with the Act and, in particular, with the specification found in s 353(2)(a). In this way, the MRT would commit jurisdictional error by failing to comply with a requirement of the Act.

18        In our respectful opinion, the description of s 420 (and thus its analogue s 353) as “exhortative” needs to be viewed through the prism of the Act as it stood at the time when Eshetu and Sun Zhan Qui were decided and in the context of a controversy which fell for resolution at that time about what relationship, if any, there was between s 420 and the then s 476 of the Act in terms of then permissible grounds of review in this Court. The description was but an emphatic way of making two points about the Act as it then stood. The first was that, as a matter of statutory construction, s 420 did not supplement the truncated grounds of review for which the former s 476 provided in respect of a judicial review proceeding in this Court. The second was that the inherent procedural flexibility for which, inter alios, the section provided meant that, in this regard, the section did no more than specify that the Tribunal should adopt practices that were fair in the circumstances of the particular case before it, rather than obliging the adoption by the Tribunal in the conduct of every review, of a particular practice, the neglect of which would mean that there had not been a review in accordance with the requirements of the Act.

19        The other members of the High Court which heard Eshetu were Gaudron and Kirby JJ. Their Honours also did not regard s 420 of the Act as providing any ground of review in this Court in addition to those for which the then s 476 provided. They observed at [75] that s 420(2) was in two parts which, taken together, “describe the general nature of the review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals” (emphasis added). In the opinion of Gaudron and Kirby JJ, s 420, in describing the general nature of the procedures that the tribunal was to adopt, informed the grounds of review specified by the then s 476 of the Act, including those which were excluded from this Court’s consideration by the then s 476(2) of the Act. Their Honours gave examples, at [76], as to how s 420 had a substantive effect, even though it did not itself provide for a ground of review. In terms of the then s 476(1)(e), their Honours observed that it would, having regard to s 420, be an error of law for the Tribunal to decline jurisdiction because of some technical error in the application for review. Conversely to that example, their Honours considered that, in light of s 420, it would be neither an error of law nor a procedural irregularity for the tribunal to reach a decision on the basis of hearsay information which would not be admissible in legal (meaning in context judicial) proceedings. Their Honours concluded that these examples “suffice to illustrate that s 420 has an effect, but only an indirect effect, on review proceedings”.

20        A later Full Court of this Court should not lightly depart from an earlier judgment of the Full Court. However and with respect, the description of s 353 in SZMOK as “exhortative” gives insufficient attention to the context, referred to above, in which that description was given in the earlier authorities mentioned. It also fails to recognise that the section does contain what are, on any view, substantive requirements, as the joint judgment of Gaudron and Kirby JJ in Eshetu highlights. The repeal of the then s 476 does not mean that those requirements in s 420 in respect of the conduct of a review have disappeared or can be ignored with impunity, only that the grounds of review specified in that former section are no longer “informed” by them. It does not mean that non-observance of such a requirement specified in s 353 cannot constitute jurisdictional error for the purposes of s 75(v) of The Constitution. Further and in any event, we are bound by what was said in SZGUR to regard s 353 as a “requirement”, not a mere “exhortation”.

21        The same conclusion necessarily follows in relation to the prescription of fairness found in s 357A(3) of the Act.

22        Insofar as the Minister has, in supplementary written submissions permitted by the Court after the conclusion of oral argument and by reference principally to SZMOK, contended that s 353 and s 357A(3) are each but an exhortation we reject that submission. Though the Minister referred to SZGUR in those supplementary submissions, he failed in so doing to appreciate the language employed by the plurality in that case to describe the effect of the analogue of s 353, s 420.

23        Two judgments of the Court handed down following the close of oral argument acted as a catalyst for the supplementary submissions: Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 (Ortiz) and Minister for Immigration and Citizenship v Tran [2011] FCA 1445 (Tran). Though each of these judgments was given in the exercise of appellate jurisdiction, the Court was constituted in each case by a single judge.

24        As the Minister correctly highlighted, the outcome in Ortiz turned on two bases, an unreasonable refusal of an adjournment and also irrationality on the part of the MRT on the evidence before it in failing to be satisfied that Mr Ortiz was the father of the child in question and thus met the material visa criterion. In Ortiz, Logan J did not have the benefit of the submission developed by reference to SZMOK which was made by the Minister in this case. Indeed, SZMOK was not mentioned at all by either party in the submissions made in Ortiz. Nor, as the reasons in Ortiz reveal, did Logan J consider, of his Honour’s own motion, either that case, SZGUR or the others canvassed above. Instead, as the reasons for judgment in Ortiz also reveal, Logan J confined his Honour’s consideration of what to make of s 353 and s 357A(3) to a dictum of Perram J in Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [30], to observations made in NAHF (2003) 128 FCR 359 at 365-366 by Hely J and, more generally, to Aala.

25        In Tran, Lander J also appears not to have had the benefit of submissions from the Minister of the kind made on his behalf to the Full Court in this case. In Tran, Lander J decided that the Federal Magistrates Court had rightly concluded that the refusal of a reasonably made request for adjournment was procedurally unfair and evidenced jurisdictional error. In so doing, Lander J referred to the statement made by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Bhardwaj) that “a failure to accede to a reasonable request for adjournment can constitute procedural unfairness”. That proposition is well grounded in Australian and English authority, as the authorities cited by Gaudron and Gummow JJ in Bhardwaj at [40], in fn (43) disclose. The unreasonable denial of a request for an adjournment is one way in which an applicant for review can be denied an opportunity to be heard and thereby the rules of natural justice breached. As Gaudron and Gummow JJ further observe in Bhardwaj at [41], referring to the authority of Aala, a decision attended by such a breach may be set aside under s 75(v) of The Constitution.

26        On analysis, it can be seen that both Ortiz, insofar as it turned on the refusal of adjournment issue, and also Tran are but examples of applying Aala where the circumstances of a particular case disclosed jurisdictional error in the form of a failure to afford an opportunity to be heard constituted by an unreasonable refusal of an adjournment. Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 per Gyles J is another such example.

27        When a tribunal fails in this way to offer an opportunity to be heard, it fails to discharge its core statutory function of reviewing the decision of the Minister or his delegate.

28        Necessarily, where the MRT behaves in this fashion it has also not met the requirement of providing a mechanism of review that is “fair” (s 353) or “acted in a way that is fair and just” (s 357A(3)). It may well be that these particular provisions add nothing to the general law ground of a denial of procedural fairness which can constitute jurisdictional error for the purposes of s 75(v) of The Constitution. On reflection, and with the benefit of expressly considering both SZMOK and SZGUR, we consider that this is the better way to view the prescriptions for “fairness” found in s 353 and s 357A(3). Even if these sections are only declaratory, they are not, in our respectful opinion, thereby to be consigned to the status of aspirational statements, as opposed to requirements. It is just that, as with the general law error ground, neither can have any particular content divorced from the circumstances of a particular case or the statutory context in which they appear.

29        Consideration of the statutory context in which s 353 and s 357A(3) appear does not negate the proposition that an unreasonable refusal of an adjournment can constitute jurisdictional error on the part of the MRT. The MRT’s “core function” is to review an MRT reviewable decision such as that made in respect of, the respondent, Ms Li: s 348. In so doing, it must invite her to appear: s 360. The appearance afforded by the MRT to an applicant by that invitation must be meaningful, not perfunctory, or it will be no appearance at all. The MRT is given power to adjourn proceedings from time to time: s 363(1)(b) of the Act. An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of The Constitution.

30        As we have already observed, necessarily, it will also mean that the MRT has not conducted its core function in a way which is “fair”, which is a requirement of s 353 and, for that matter, of s 357A(3) of the Act. The statement in s 357A(1) of the Act that the division of the Act in which s 357A(3) appears is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that division is not a palliative for a failure on the part of the MRT to discharge its “core function”.

31        The Minister submitted that there is no legal requirement on the part of the MRT, relevant to the validity of its final decision, to consider whether an adjournment should be granted and thus a failure to give that consideration did not, in itself, provide a ground of review of the final decision. It is true that s 363(1)(b) is a source of power, not a requirement which attends the making of a decision. However, to approach matters in this way is apt to divert attention from whether, in the circumstances of a particular case, which here includes the refusal of an adjournment, the MRT has discharged its “core function” of conducting a review according to law, which includes affording an applicant a reasonable opportunity to be heard.

32        In his reasons for judgment the learned federal magistrate observed, at [49] and [50]:

[49]    Ultimately what appears absent in the Tribunal's decision in this instance is a consideration of the relative merits of the competing interests. The applicant's agent informed the Tribunal of the outcome of the second skills assessment when he received it and of the applicant's concerns about its efficacy. The applicant's agent set out in detail why the decision was in error. On a plain reading of the applicant's agent's letter there appeared good reason to be cautious of the assessing authority's original decision. The applicant's detailed explanation of the reasons why the decision was wrong ought to have put the Tribunal on notice that this was not merely a stalling tactic on the part of the applicant. That matter was the only item outstanding in what otherwise ought to have been a successful application. When considered together with the significance of the impact of that wrong decision, I consider the Tribunal's decision to proceed in these circumstances rendered it unreasonable such as to constitute it unreasonableness in the Wednesbury Corporation sense. That is to say it constituted an improper exercise of the power and it went to the very jurisdiction.

[50]    This is so because there was nothing in the Tribunal's decision to suggest any evaluation had been effected of the applicant's agent's contentions on this point. The decision to refuse an adjournment did not appear to be informed by an assessment of the weight of this factor. That was especially important in circumstances where the potential outcome for the applicant was catastrophic when measured against the interests of the Commonwealth. In the circumstances a delay in delivery of its decision would not have occasioned any harm to the Commonwealth. Nor could it be contended its referral was the only way justice could have been effected for the Commonwealth.

33        The Minister devoted some time in his submissions, both oral and written, to a critique of the aptness of his Honour’s reference in the passage quoted and elsewhere in his reasons for judgment to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. He submitted that the decision made by the MRT to affirm the visa refusal decision, ie the final decision, was not discretionary and that “Wednesbury unreasonableness” was not a ground upon which such a decision could be reviewed. This is true. The material visa criterion is that found in item 880.230(1) in Sch 2 to the Migration Regulations 1994 (Cth). The criterion it specifies is:

A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular.

34        Whether or not this criterion is met does not entail the exercise of any discretionary power. The power, conferred by s 363(1)(b) of the Act, to adjourn the hearing of an application is discretionary. If that discretion is exercised unreasonably such that the result is that a visa applicant is not afforded a meaningful appearance, the MRT will not, for the reasons given above, have conducted a review of a decision according to law. Read as a whole rather than narrowly, the passage which we have quoted from the reasons of the learned federal magistrate stands for nothing more than this. So read, the passage is unremarkable. In the circumstances, an unreasonable refusal of an adjournment did indeed, as his Honour concluded, “go to the very jurisdiction”.

35        It is also true, as the Minister submitted, that “the Commonwealth” is not a party to proceedings before the MRT and that such proceedings are not adversarial. To this extent, the learned federal magistrate has, with respect, in the passage quoted, exhibited a misunderstanding of the nature of the proceeding before the MRT. This misunderstanding does not though mean that his Honour’s conclusion that the refusal to adjourn was unreasonable in the circumstances and productive of jurisdictional error, was wrong.

36        We respectfully agree with the factual analysis by the learned federal magistrate, at [49] and [50], of the circumstances prevailing before the MRT at the time when Ms Li, by her migration agent, requested the Tribunal to postpone the hearing of the review application. Certain MRT reviewable decisions must be decided by the MRT within a “prescribed period”: s 367 of the Act. The decision under review by the MRT in this case was not one of that kind. That being so, the MRT was under no temporal obligation to determine the matter other than as quickly as reasonably possible. Necessarily, the content of that obligation depends on the circumstances of a particular case. It may be accepted that the MRT was under no obligation indefinitely to postpone the finalisation of its review.

37        Here, there was, as the correspondence to the MRT by Ms Li’s migration agent makes plain, every reason to conclude that the second skills assessment by Trades Recognition Australia (TRA), which was the “relevant assessing authority”, was infected by error, which error Ms Li was actively seeking to have that body address. Again having regard to the migration agent’s letter, there was every reason to conclude that the only reason why the second skills assessment was adverse was a failure on the part of the TRA to follow its own procedures. As the MRT correctly recognised, there was nothing in the regulations which forbade the furnishing by an applicant of a second skills assessment. A favourable such assessment was critical to the applicant meeting the visa criteria. For the MRT to refuse the adjournment was, effectively, to doom Ms Li’s application for review to failure.

38        In the circumstances, there was no countervailing consideration on the basis of which it might be concluded that the refusal to adjourn was one reasonably open to the MRT. For the MRT to refuse to adjourn was to deny her a reasonable opportunity to present her case. In turn, for the reasons which we have set out above, this means that the MRT has failed to conduct a review according to law because the MRT failed to discharge its statutory function of review.

39        The references by the learned federal magistrate in the judgment below, at para [44] to s 353 constituting an “obligation” and to a “breach” of s 357A(3) “analogous to a denial of procedural fairness” are not, for the reasons given above, necessarily indicative of any error. Just such imperative language is used by the plurality of the High Court in SZGUR. In any event, also for reasons given above, even if these sections are not productive of a “requirement”, there was in the circumstances of this case a denial of procedural fairness amounting to jurisdictional error.

40         For these reasons, the Minister’s appeal should be dismissed, with costs.

Associate:

Dated:    24 May 2012

REASONS FOR JUDGMENT

COLLIER J

41        In this case the Minister appeals the decision of a Federal Magistrate, in which his Honour upheld an application to review a decision of the Migration Review Tribunal (“the Tribunal”) and ordered the matter remitted to the Tribunal for rehearing.

42        The key question for determination by this Court is whether a decision of the Tribunal to refuse to adjourn a hearing can, in particular circumstances, constitute an error going to the jurisdiction of the Tribunal, so as to warrant an order quashing the decision of the Tribunal.

43        The facts relevant to this appeal, which are not in dispute, are primarily taken from the judgment of his Honour below.

Background

44        Ms Li is a citizen of the People’s Republic of China. On 10 February 2007, using the services of a migration agent, Ms Li applied to the Department of Immigration and Citizenship (“the Department”) for a Skilled – Independent Overseas Student (Residence) (Class DD) Visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

45        At all relevant times, the relevant decision criterion in subcl 880.22 of Pt 880 of Sch 2 of the Migration Regulations 1994 (Cth) was as follows:

A relevant assessing authority has assessed the skills of the applicant, or the applicant’s spouse or de facto partner, as suitable for his or her nominated skilled occupation, and no evidence [had] become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular.

46        In her visa application Ms Li claimed that she had obtained a suitable skills assessment dated 8 January 2007 from Trades Recognition Australia (TRA), stating her occupation as cook (4513-11) for the skills assessment component of the migration process in accordance with subcl 880.22.

47        Details relied upon by TRA for the skills assessment included employment references from two businesses in Sydney: Market City Bar and Martin Place Café. It is not in dispute that the Department independently investigated these businesses, including site visits in September 2007. It is also not in dispute that neither premises had cooking facilities as claimed by Ms Li, so as to satisfy the training requirements of the visa for which she had applied.

48        Site visits also suggested that Ms Li did not have an employment relationship with “Martin Place café”.

49        Ms Li’s interview with Departmental officers in February 2008 regarding her visa application was unsatisfactory in that, for example, Ms Li could not recall details of her alleged places of employment.

50        In assessing Ms Li’s visa application, the Minister’s delegate formed the view that Ms Li had not worked the requisite 900 hours as claimed. Further, the delegate formed the view that some of the information used as part of the skills assessment by TRA was false and/or misleading.

51        As a result of these matters Ms Li’s visa application was refused by the Minister’s delegate.

52        On 21 January 2009 Ms Li applied to the Tribunal for review of the delegate’s decision.

53        On 21 September 2009 the Tribunal wrote to Ms Li pursuant to s 359A of the Act inviting Ms Li to comment upon or respond to matters the Tribunal considered would be the reason or part of the reason for affirming the decision under review. In particular, the Tribunal sought comments in respect of the information adduced by the Department in its 2007 site visits.

54        In September 2009 Ms Li engaged a new migration agent, Mr Fraser Syme, to correspond with the Tribunal on her behalf. On 21 September 2009 Mr Syme informed the Tribunal that Ms Li had been the victim of a fraud by her previous migration agent in respect of information provided to the Department, but that in any event Ms Li had accumulated further work experience as a cook working in restaurants following her initial visa application.

55        In a subsequent letter to the Tribunal dated 19 October 2009 Mr Fraser Syme informed the Tribunal that Ms Li had sought a second skills assessment from TRA to be used as the basis of her visa application. Mr Syme submitted to the Tribunal that a fresh skills assessment would resolve Ms Li’s difficulties. A request for a fresh assessment was sent to TRA on 4 November 2009.

56        The Tribunal gave notice convening a hearing, which was held on 18 December 2009.

57        On 21 December 2009 the Tribunal again wrote to Ms Li, calling for her to comment upon her statement in her initial assessment application concerning her employment and her answers to questions by Departmental officers.

58        On 22 December 2009 Ms Li received notice of a decision of TRA, made 15 December 2009, that her second skills assessment was unsuccessful.

59        In correspondence to the Tribunal, Mr Syme on Ms Li’s behalf submitted that the TRA decision was infected by error, including a failure by TRA to follow its own procedures, and that Ms Li had applied to TRA for review of its decision. Accordingly, Mr Syme requested the Tribunal to forbear from making any final decision regarding her review application until the outcome of her skills assessment application was finalised by TRA. Mr Syme submitted that Ms Li had, in fact, satisfied the relevant criteria for a visa.

60        Ms Li also provided the Tribunal with a separate statement in relation to her interview by Departmental officers, and claimed, inter alia, that, although she had lied at the interview, she had been extremely nervous and had felt very intimidated. She also claimed that she had realised at the interview that her situation was very serious but she was desperate to ensure that she did not lose her chance to remain in Australia. Ms Li stated that she had not authorised her former agent to provide false material as part of her visa application.

Findings of the Tribunal

61        The Tribunal proceeded to determine the application without waiting for a revised assessment by TRA. The Tribunal found as follows (0900645 [2010] MRTA 151):

FINDINGS AND REASONS

29.    At the time the visa application was lodged, the Skilled Independent Overseas Student (Residence) (Class DD) visa contained only subclass 880 (Skilled - Independent Overseas Student).

30.    The criterion in dispute is clause 880.230 which is relevant to the time of decision and relevantly provides that no evidence has become available that the information given or used as part of the relevant assessing authority’s assessment of the applicant’s skills is false or misleading in a material particular.

31.    In this case, the applicant identified her nominated skilled occupation as ‘cook’. According to IMMI 06/063 in force from 6 December 2006, the relevant assessing authority for cooks is Trades Recognition Australia (TRA). According to a letter from TRA dated 8 January 2007 lodged by the applicant with the application, TRA had accepted that on the basis of the applicant’s training and/or work experience, her skills were accepted for the occupation of ‘cook’. Accordingly, the Tribunal finds that the Relevant Assessing Authority has assessed the applicant’s skills as suitable for her nominated skilled occupation of cook on 8 January 2007.

32.    The Department stated that the applicant submitted to TRA her Australian qualifications as a cook from SICB, a certificate III in Hospitality – Commercial Cookery dated 4th July 2006 and an employment reference from Market City Bar claiming that she worked there as a cook from 16th May 2005 to 18th December 2006. the Department has also stated that the TRA Record of Assessment stated that there was telephone verification with a file note stating that skills assessor Robert Tracey called the referee, Ricky Choi, who confirmed the 900 hours and that the applicant ‘can and does perform the duties of a cook’. The applicant’s employment experience at Market City Bar was put to her at hearing and she stated that she understood that her former agent had put this material to TRA and that the decision by TRA to positively assess her skills as a cook was wrongly tainted. The applicant’s agent has stated that there is no question about that and the reference is not true. The Tribunal finds that based on this, TRA’s assessment of the applicant’s skills as suitable for her nominated skilled occupation as cook has relied upon the applicant’s experience at Market City Bar which is not true. The Tribunal must still ascertain whether the applicant’s experience at Market City Bar is false or misleading in a material particular. The Tribunal notes that the Department stated that the TRA Record of Assessment stated that there was telephone verification with the referee, Ricky Choi, who confirmed the 900 hours and that the applicant can and does perform the duties of a cook. Given this, and given that the TRA assessment referred to the applicant’s training and/or work experience, the Tribunal finds that the applicant’s false work experience at Market City Bar was used towards the applicant’s positive skills assessment and was not only relevant to TRA’s assessment dated 8 January 2007, but was also not trivial or inconsequential to that assessment. As a result, the Tribunal finds that evidence has become available that the information given or used as part of the assessment of the applicant’s skills was false or misleading in a material particular.

33.    The Tribunal has found that the only TRA assessment currently before it is dated 8 January 2007 and that the applicant’s false work experience was used towards her positive skills assessment and was false or misleading in a material particular. The applicant has maintained that she did not deliberately seek to mislead TRA and that the reference letter was included in the skills assessment application to TRA by her former migration agent, Mr David Yao, without her consent or knowledge. The Tribunal has difficulty accepting this given that it is not disputed that the applicant lied about her experience when first confronted with it by DIAC. Even if the Tribunal does give the applicant the benefit of the doubt and accepts she did not know that the reference was included in the TRA skills assessment and she lied to DIAC because she was nervous and intimidated and did not want to lose her chance to remain in Australia, the Tribunal does not consider that clause 880.230 requires the applicant’s knowledge that the information given or used as part of the assessment of her skills is false or misleading in a material particular.

34.    The applicant’s adviser has submitted that the fraud affected TRA assessment can be replaced by a new TRA assessment which will thereby mean that the applicant can still meet clause 880.230. He has also requested time to obtain a fresh assessment. The applicant’s adviser has also suggested that clause 880.230 should not be read in conjunction with 880.211. He has also referred to clause 880.224.

35.    Although there is no legislative restriction upon acquiring a second skills assessment, there is no current skills assessment before the Tribunal assessing the applicant as suitable other than that of the 8 January 2007 assessment. The Tribunal has had regard to the TRA assessment of 15 December 2009 and the adviser’s submission that it has been affected by errors and is the subject of review. The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority’s assessment.

36.    Given the findings made above, the Tribunal finds that it is unnecessary to consider clause 880.224.

37.    Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

Review of the TRA assessment

62        It is common ground that, following the Tribunal’s decision, Ms Li was successful in respect of the TRA’s review of its second assessment of her skills, and that the resultant TRA assessment was favourable to her. His Honour noted this fact but observed in the primary judgment that he had not taken the revised assessment into consideration in determining Ms Li’s application in that Court.

Decision of Federal Magistrate

63        Before the Federal Magistrate Ms Li pressed two grounds of review of the decision of the Tribunal, namely that:

1.    the Tribunal failed to afford her procedural fairness by not deferring its decision while Ms Li was awaiting the outcome of her review application to the assessing authority; and

2.    the Tribunal misconstrued the meaning of Schedule 2 criterion 880.230 to cover “each and every relevant assessing authority’s assessment” and therefore misapplied the law, which caused the Tribunal to fail to exercise its role correctly.

64        His Honour also requested the parties to address him on the question whether the Tribunal’s failure was, in the circumstances, unreasonable in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. At [27] his Honour explained that the issue posited by him for debate was:

Why the decision by the Tribunal to refuse the applicant further time to permit finalisation of the skills assessment dated 15 December 2009 was not unreasonable in the Wednesbury Corporation sense.

65        In relation to the first ground of review his Honour found that the decision of the Tribunal to proceed to determination, in circumstances where Mr Syme had explained the circumstances pertaining to information supplied by her first migration agent, was:

    unreasonable in the Wednesbury sense; and

    constituted an improper exercise of power (at [48], [51]).

66        The reasons for his Honour’s conclusion were, in summary:

    while the Minister submitted that Ms Li had frequently delayed in undertaking steps required in respect of her application, nonetheless it was also apparent that time for compliance had not previously been an issue (at [48]);

    a consideration of the respective merits of the competing interests of the parties was absent from the Tribunal’s decision. In particular, his Honour noted at [49]-[50]:

On a plain reading of the applicant’s agent’s letter there appeared good reason to be cautious of the assessing authority’s original decision. The applicant’s detailed explanation of the reasons why the decision was wrong ought to have put the Tribunal on notice that this was not merely a stalling tactic on the part of the applicant. That matter was the only item outstanding in what otherwise ought to have been a successful application…. (T)here was nothing in the Tribunal’s decision to suggest any evaluation had been effected of the applicant’s agent’s contentions on this point. The decision to refuse an adjournment did not appear to be informed by an assessment of the weight of this factor. That was especially important in circumstances where the potential outcome for the applicant was catastrophic when measured against the interests of the Commonwealth. In the circumstances a delay in delivery of its decision would not have occasioned any harm to the Commonwealth. Nor could it be contended its referral was the only way justice could have been effected for the Commonwealth.

(Footnotes omitted.)

    The failure of the Tribunal to evaluate the contentions of the applicant’s agent infected the Tribunal’s decision. This failure constituted conduct which was unreasonable in the Wednesbury sense. It followed that the decision was infected by jurisdictional error warranting remittal of the application to the Tribunal for rehearing.

67        His Honour found that the second ground of review had not been substantiated. His Honour’s finding in relation to construction of criterion 880.230 is not in issue in this appeal.

Grounds of appeal

68        The grounds of appeal of the Minister against the decision of his Honour were as follows:

1.    The learned Federal Magistrate erred in holding that the refusal by the Migration Review Tribunal’s (“MRT”) to delay making a decision as requested by the First Respondent was affected by Wednesbury unreasonableness, on the bases that:

a.    His Honour reversed the correct onus of proof, requiring the first respondent to establish why the decision of the MRT to refuse further time or to refuse the adjournment was not unreasonable in the Wednesbury sense, rather than it being for the applicant to establish why the decision of the Tribunal to refuse the applicant further time or to refuse the adjournment was unreasonable in that sense;

b.    His Honour erred in proceeding on the basis that a desire for delay on the part of the First Respondent, in order that through changed circumstances she might come to satisfy a relevant criterion, was a ground upon which the MRT could or should delay making its decision;

c.    His Honour erred in treating the absence of overt consideration by the MRT of particular issue or considerations, rather than the reasonableness of the exercise of the discretion in itself, as an element of the test of Wednesbury unreasonableness;

d.    His Honour erred in having regard to his own assessment of the merits of the First Respondent’s basis for requesting an adjournment;

e.    His Honour erred in having regard to his own assessment of the merits of the First Respondent’s review application;

f.    His Honour erred in finding that the MRT’s refusal was a decision that no reasonable tribunal could have made.

2.    The learned Federal Magistrate erred in holding that a failure to adjourn may result in a breach of section 357A (3) of the Migration Act 1958 (Cth) (“the Act”) being a denial (or analogous to a denial) of procedural fairness.

3.    The learned Federal Magistrate erred in holding that a refusal to exercise a procedural discretion (namely the discretion to adjourn the review or otherwise delay making a decision), not amounting to a denial of procedural fairness or a breach of any statutory requirement, was capable of constituting a jurisdictional error vitiating the Tribunal’s decision on the review.

69        Before turning to the appellant’s grounds of appeal, it is appropriate to outline a number of principles which, in my view, are relevant to issues agitated in this proceeding.

Procedural fairness and natural justice under the Act

70        Hearings before the Tribunal are subject to s 357A of the Act. The section provides as follows:

Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

71        “This Division” to which s 357A refers is Pt 5 Div 5 of the Act. Part 5 deals with the conduct of review of decisions of the Minister. Division 5 contains the following sections:

357A.    Exhaustive statement of natural justice hearing rule

358.    Documents to be given to the Tribunal

359.    Tribunal may seek information

359AA.    Information and invitation given orally by Tribunal while applicant appearing

359A.    Information and invitation given in writing by Tribunal

359B.    Requirements for written invitation etc.

359C.    Failure to give information, comments or response in response to written invitation

360.    Tribunal must invite applicant to appear

360A.    Notice of invitation to appear

361.    Applicant may request Tribunal to call witness and obtain written material

362.    Applicant may request Tribunal to call witnesses

362A.    Applicant entitled to have access to written material before Tribunal

362B.    Failure of applicant to appear before Tribunal

363.    Powers of the Tribunal etc.

363A.    Tribunal does not have power to permit a person to do something he or she is not entitled to do

364.    Presiding member may authorise another person to take evidence

365.    Review to be in public

366.    Oral evidence by telephone etc.

366A.    Applicant may be assisted by another person while appearing before Tribunal

366B.    Other persons not to be assisted or represented while appearing before Tribunal

366C.    Interpreters

366D.    Examination and cross-examination not permitted

367.    Certain decisions to be made within prescribed period

72        Sections 358-367 provide, in great detail, procedural rules applicable to hearings before the Tribunal. Relevantly to these proceedings, s 363(1)(b) empowers the Tribunal, for the purpose of a review of a decision, to adjourn the review from time to time, although the section imposes no specific obligation on the Tribunal in relation to the exercise of the power. I note that the Full Court in Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152 merely observed that it is open to the Tribunal to adjourn a hearing from time to time.

73        In Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 this Court considered in depth the rationale for the enactment of s 357A as well as comparable s 51A and s 422B of the Act. The Court recognised that s 357A, which became operative on 4 July 2002, was legislated in response to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. In summary, s 357A limits the application of rules of procedural fairness for the purposes of proceedings under the Act, and confirms that common law natural justice requirements are excluded from the operation of the Act: Saeed at [25]-[46], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, Khan v Minister for Immigration and Citizenship [2011] FCAFC 21.

74        Notwithstanding, it is clear that other – non-procedural – rules of natural justice are not excluded from the operation of the Act. The example usually cited is bias: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [27], SZCIJ at [65], Saeed at [30].

75        It follows that the question whether a failure of the Tribunal to adequately consider adjournment can properly found an application for judicial review must be considered in light of the provisions of Pt 5 Div 5, and in particular s 357A. In answering this question the following issues arise from the decision of his Honour:

    Can a failure to adjourn be contrary to s 357A(3) of the Act as suggested by his Honour at [45]?

    If not, can a failure to adjourn otherwise found an application for review of a decision of the Tribunal?

Can a failure to adjourn be contrary to section 357A(3) of the Act?

76        In considering s 357A in the circumstances before the Court, it is useful to note that, notwithstanding the limitations in respect of the application of the common law rules of natural justice enacted in that section, s 357A(3) states that the Tribunal, in applying Pt 5 Div 5, must act in a way that is fair and just.

77        In Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1308 Finn J observed in relation to s 357A:

[27] The construction of this provision is not free from difficulty: see generally NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456. That difficulty arises because the Division’s “exhaustive statement of the requirements of the natural justice hearing rule” is only “in relation to matters [the Division] deals with”. As French J indicated of the counterpart provision (s 422B) in Division 4 of Part 7 of the Act in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590; (2004) 204 ALR 624 at [57]:

This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, i.e. the conduct of reviews by the Tribunal.

78        So, for example, an immediate question is whether, in considering whether to adjourn a proceeding pursuant to s 363(1)(b), the exercise of the Tribunal’s powers is qualified by s 357A so that any decision of the Tribunal must be “fair and just”.

79        The Minister submitted that s 357A(3) does not create “free standing obligations” capable of creating rights which can be enforced.

80        There is merit to this submission. Section 357A(3) is identical in its terms to s 422B(3), which requires the Refugee Review Tribunal to act in a way that is fair and just. A similarly drafted provision exists in s 353(1) (and, in relation to the operations of the Refugee Review Tribunal, s 420(1)), which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick in carrying out its functions under this Act.

81        Section 422B(3) was considered by this Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83. In that case the appellant had applied for a protection visa under the Act. The Tribunal dismissed the application. The appellant complained that the Tribunal had failed to warn him that it would reject a number of documents produced to the Tribunal, because the Tribunal considered that those documents had been fabricated by the appellant for the purposes of enhancing his application for a protection visa. He claimed relief, at first instance in the Federal Magistrates Court, on the basis that the Tribunal had failed to comply with s 422B(3) of the Act.

82        In their joint judgment the Full Court explained:

[15]…Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 (see Eshetu’s Case at [158]).

[16] Section 424A does not require the Tribunal to put its thought processes or preliminary conclusions to an Applicant (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]). Further, s 422B(3) should not be construed as imposing such an obligation or requiring s 424A to be interpreted as imposing such an obligation. Section 422B(3) speaks of how the Tribunal must act in applying Division 4. It is not a free standing obligation, but simply draws content from the other provisions of Division 4.

[17] Thus, s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) that Division 4 contained an exhaustive statement of the application to the conduct of a review by the Tribunal of the natural justice hearing rule in relation to the matters dealt with in Division 4. In that sense, s 422B(3) complements s 420(1). The unequivocal statement in s 422B(1) of the exhaustive nature of Division 4 renders it unarguable that some other requirement of fairness are to be implied.

[18] However, while the effect of s 422B(1) was to make Division 4 an exhaustive statement of the rule, there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly. Accordingly, it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4. Section 422B(3) might therefore be understood as restoring fairness and justice as a procedural concept. In those circumstances, the requirement that the Tribunal act in a way that is fair and just does not refer to substantive notions of justice or fairness but is more usefully to be compared with the content of the words “justice” and “fairness” in the expressions “natural justice” and “procedural fairness”, respectively (see SZLLY v Minister for Immigration & Citizenship [2009] FCA 185; (2009) 107 ALD 352 at [22] to [24]).

(Emphasis added.)

83        In considering the decision of the Tribunal to proceed to determination, his Honour below at [44] noted the obligation of the Tribunal under s 353, and “accepted” that circumstances in which a failure to adjourn “may result in a breach of s 357A(3) are of a kind analogous to a denial of procedural fairness”. I agree with the submission of the Minister that the import of this statement is not clear. In fact, it is not clear that his Honour actually based his decision that the Tribunal had erred in a manner going to its jurisdiction on a supposed breach of s 357A(3). Had his Honour done so, in my view his Honour would have been in error for the reasons given by the Full Court in SZMOK in relation to s 422B(3). A failure to adjourn cannot constitute a breach of procedural fairness as being contrary to s 357A(3), because s 357A(3) is an exhortative provision which does not create a procedural requirement over and beyond the express provisions of Pt 5 Div 5 of the Act.

Can a failure to adjourn otherwise found an application for review of a decision of the Tribunal?

84        Before this Court the Minister submitted, in summary, that:

    refusal of an adjournment may, in some circumstances, lead to a breach of general law principles of procedural fairness, as identified in NAHF v Minister for Immigration (2003) 128 FCR 359 at 365;

    absent a requirement arising from s 357A(3), no connection is apparent between his Honour’s finding that the Tribunal’s procedural discretion was exercised unreasonably and the ultimate conclusion of jurisdictional error;

    the Tribunal’s obligations of procedural fairness are expressly limited to compliance with the specific provisions of Pt 5 Div 5 of the Act, none of which imposes any obligations in relation to the grant of adjournments.

85        In my view the assumption buttressing these submissions, namely that a decision to refuse an adjournment does not fall within the contemplation of Pt 5 Div 5 of the Act and therefore cannot found an application for review of the Tribunal’s decision, is false. This is because, in fact, there are requirements imposed on the Tribunal by s 360 and s 363(1)(b) of the Act, and resultant duties of the Tribunal to not only present the applicant before it with a reasonable opportunity to be heard, but to properly consider any application for an adjournment.

86        Section 360 of the Act provides as follows:

Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

87        The obligation of the Tribunal to invite the applicant to appear before it, to give evidence and present arguments relating to issues arising in relation to the decision under review, contemplates the proper consideration by the Tribunal of matters before it, including an application for an adjournment of proceedings. This is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and the decision of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126.

Bhardwaj

88        While the decision of the High Court in Bhardwaj predates the operation of s 357A of the Act, the principles discussed by their Honours are directly relevant to the interpretation of s 360 in its current form.

89        In Bhardwaj the High Court considered the construction of s 360(1) of the Act, which at the material time provided that the Tribunal:

(a) must give the applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

(b) may obtain such other evidence as it considers necessary.

90        The amendments to s 360(1) introduced since its consideration by the High Court in Bhardwaj appear to reflect the desire of Parliament to allow greater flexibility in respect of the actual appearance of the visa applicant before the Tribunal, including allowing the Tribunal to make decisions favourable to the visa applicant without the necessity of the visa applicant appearing at a hearing. The revision to s 360(1) has not otherwise affected the obligation of the Tribunal in respect of hearing an application by the visa applicant, and has certainly not reduced the applicant’s right to appear before the Tribunal to a merely formal right to be invited (Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44], NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]).

91        In Bhardwaj the respondent was a student whose visa was cancelled by a delegate of the Minister, and who applied to the Tribunal for a review of the decision. The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing. Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September. The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate. When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September. A new hearing date was arranged. The Tribunal heard the respondent's explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and, on 22 October 1998, revoked the cancellation. The Minister appealed the decision on the ground that the Tribunal had previously made a decision in respect of the same application and was functus officio.

92        The appeal was dismissed unanimously. The Court found that, on the facts, the decision made by the Tribunal in ignorance of the application for adjournment had not been a proper decision, and should be set aside.

93        Gleeson CJ observed:

[14]    In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as “error in fact” in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal “to stay its hand if it had knowledge, or to re-open its judgment had it the power.” The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent’s favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its “decision”, the Tribunal merely noted the delegate’s decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate’s decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.

[15]    In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

(Footnotes omitted and emphasis added.)

94        Gummow and Gaudron JJ (McHugh agreeing) observed:

[40]    Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.

[41]    It was not disputed by the Minister that the September decision was made in circumstances in which Mr Bhardwaj was denied a reasonable opportunity to answer the case against him. It, thus, involved a breach of the rules of natural justice and may be set aside by this Court pursuant to s 75(v) of the Constitution. Further, as was contended on behalf of Mr Bhardwaj, the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act.

[42]    The function of the Tribunal was to conduct a review of the delegate’s decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj’s visa.

[43]    The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a “decision on review” for the purposes of ss 367 and 368 of the Act.

[44]    To say that the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under s 75(v) of the Constitution. This notwithstanding, the question whether the Tribunal could disregard its September decision depends on the scheme of Pts 5 and 8 of the Act. To understand that scheme, it is necessary to say something as to the nature of an administrative decision.

(Footnotes omitted and emphasis added.)

95        Kirby J said:

[88]    In its earlier decision in Capitly, the Federal Court had recorded a submission for the appellant that the Tribunal had sufficiently discharged its obligations in law by advising of the proposed hearing date and the right to give evidence. That submission was based upon the notion that the Act was concerned only with the obligations of the Tribunal and not with anything that might happen thereafter to an applicant. However, the Federal Court gave a broad meaning to the phrase “opportunity to appear”. It rejected the submission that its approach would “open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing”.

[89]    The construction of the Full Court was open on the statutory language. It was one apt to promote the attainment of the relevant legislative purpose. It was also broadly consonant with the importance attached by the common law to the right to be heard before important decisions having adverse consequences are made. A relevant consideration is the statutory restriction on the right of an applicant to be represented before the Tribunal by another person.

(Footnotes omitted.)

96        Hayne J said:

[147] The inquiry about the legal consequences to be attributed to what was done in September 1998 must begin and end with the Act. The relevant provisions are set out in the reasons of Kirby J and I do not repeat them. It was assumed, at first instance, and on appeal to the Full Court of the Federal Court, and it was not seriously challenged in this Court, that the provisions of s 360(1)(a) of the Act (in their then form) had obliged the Tribunal to give the respondent “a continuing opportunity” to give evidence to the Tribunal, and that that opportunity must take account of circumstances as they existed from time to time until the opportunity to give evidence was either taken or not. It was not seriously disputed in the courts below, or in this Court, that, due to an oversight, the Tribunal had not given the respondent the opportunity which s 360(1)(a) required he be given before the Tribunal made the September decision. Accordingly, the argument of the appeal in this Court proceeded from an assumption from which it followed that, if application had been made either to the Federal Court for an order of review on the ground that the Tribunal had not observed the procedures required by the Act, or to this Court for a writ of prohibition, the respondent would have been entitled to have the September decision set aside, or further proceedings on it prohibited. While it may be right to say that no application could be made to the Federal Court for review on the ground that there had been a denial of natural justice, what is important, for present purposes, is that the respondent could have obtained from a court (here, either the Federal Court or this Court) an order setting aside, or quashing, the September decision. And, this Court could have granted relief on the ground of denial of natural justice.

…

[149] The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act.

(Footnotes omitted and emphasis added.)

97        Finally, Callinan J observed:

[162]    I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court.

[163]    The application for an adjournment was an important document. The Tribunal was bound to give it consideration. This was not a case in which a document or a piece of evidence was merely not referred to in a decision. This is a case in which it is known that the application for an adjournment was not brought to the attention of the Tribunal in order to enable it to exercise its jurisdiction to grant or refuse the adjournment, and if it refused it, to undertake the review in the knowledge, and on the understanding that it had been refused. If the Tribunal had, at the time of making its September 1998 decision, known of the application for an adjournment, it might, if it were so minded, have decided to refuse it. It might perhaps in refusing it, have been unnecessary to give any, or any detailed reasons why it did so. But what it did have to do was to exercise its jurisdiction, that is, relevantly, to make a decision about it and the Court does know that that is one thing which it did not do.

[164]    It follows, in my opinion, that the Tribunal had not exercised its jurisdiction in September 1998 and that therefore it was open for it to do so in October 1998.

(Footnotes omitted and emphasis added.)

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR

98        In SCAR the Full Court considered an appeal from a decision of a single judge of this Court quashing a determination of the Refugee Review Tribunal for absence of procedural fairness. The alleged unfairness arose on account of the respondent’s extreme distress and the effect upon him of medication at the time of the hearing, where the hearing occurred shortly after his father’s death. This fact was unknown to the Tribunal at the relevant time.

99        The Court considered s 425, which is in identical terms to s 360 but which is relevant to deliberations of the Refugee Review Tribunal.

100        In examining s 425 the Court in joint judgment observed:

[35] Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal.

…

[37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

[38] It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a ‘jurisdictional error’.

[39] The legal position is analogous to that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117. In that case the applicant had sent a facsimile to the Tribunal advising that he could not attend the hearing on account of illness and seeking another date. The Tribunal member was not informed of the facsimile and proceeded with the hearing in the absence of the applicant. The question in that case was whether a hearing conducted by the Tribunal in the absence of the applicant was invalid for jurisdictional error. The High Court held that it was. As it was put by Hayne J at [149]:

The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act.

Admittedly that decision was made in the context of the then relevant statutory provision which required that the Tribunal give the applicant an opportunity to appear before it and to give evidence and to present arguments, whereas s 425 of the Act is limited to giving notice in relation to those matters. However, for the reasons given above that difference is not critical in the current case, whatever might be the situation in other cases.

Bhardwaj and SCAR: section 360

101        In my view Bhardwaj and SCAR are directly relevant to the proceedings before me, and more particularly to the interpretation of s 360.

102        As a matter of law, I consider that a failure by the Tribunal to give proper consideration to an application for adjournment by a visa applicant amounts to a failure of the Tribunal to give the applicant a reasonable opportunity to present evidence and argument within the meaning of s 360. The strictures imposed by s 357A(1) are not contravened – in such circumstances an order by the Court to quash the decision of the Tribunal accords with s 357A(1) of the Act. However there is clearly a breach of the obligations imposed on the Tribunal by s 360.

103        I am fortified in this conclusion by comments of Finn J in Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1308 at [31] (in relation to adjournment, and s 360), and those of the Full Court in NALQ at [34]-[39], Flick J in NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [21]-[22], Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [39] and Gyles J in Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 at [5] (in relation to adjournment, and s 425).

104        I am also satisfied that a failure by the Tribunal to properly consider an application for adjournment is an error going to the jurisdiction of the Tribunal, and susceptible of review by this Court. By analogy I note the decision of Besanko J in Minister for Immigration and Citizenship v Hassani [2007] FCA 436 that an error of the Administrative Appeals Tribunal in its consideration of its general power to adjourn was a error going to the jurisdiction of that Tribunal. More precisely, a failure of the Tribunal to properly consider an application for adjournment, being a failure of the Tribunal to accord with s 360 of the Act, is in turn a failure of the Tribunal to comply with a condition of the exercise of decision-making power and jurisdictional error as discussed by the High Court in Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476.

Finding

105        Turning now to the decision of the Tribunal, it is not in dispute that the Tribunal proceeded to its decision without awaiting the outcome of the review by TRA of its skills assessment of Ms Li. The request by Mr Syme on Ms Li’s behalf for an adjournment of the proceedings pending the TRA decision was clearly refused.

106        In this Court, Counsel for the Minister submitted that there was no suggestion that the Tribunal’s refusal to delay its decision deprived Ms Li of a fair hearing in any respect, on the basis that:

    her claims, on the facts as they stood, had been fully and cogently articulated and considered; and

    Ms Li had been deprived only of the improved prospects of success which might arise from a change in those facts.

107        However in my view it is clear that, in the circumstances of this case, the Tribunal failed to properly consider Ms Li’s application for adjournment, and that this failure constituted a failure of the Tribunal to give Ms Li a proper hearing within the meaning of s 360 of the Act. This is because:

    The grounds for the adjournment provided by Ms Li, through her migration agent Mr Syme, were clearly provided to the Tribunal. Significantly, those grounds, which related to claimed errors in the TRA assessment, were supported by an acceptance by TRA itself that it had erred in respect of its first assessment of Ms Li’s skills. From information provided by TRA it appeared likely at the time of the adjournment application that TRA would revise its previous decision in respect of Ms Li, in her favour.

    The outcome of the TRA assessment of Ms Li’s skills was an important issue for consideration by the Tribunal in its consideration of Ms Li’s visa application.

    No detriment in respect of adjournment was claimed by the Minister, in stark contrast with the possible impact on Ms Li should the Tribunal proceed to decision without informed consideration of all issues relevant to her application. This impact was properly described by the Federal Magistrate as “catastrophic” (at [50]).

    The reason for the Tribunal’s rejection of Ms Li’s application for an adjournment can be found in paragraph 35 of the Tribunal’s Statement of Decision and Reasons:

The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority’s assessment.

However in so finding, it is clear that the Tribunal did not consider the grounds upon which Ms Li sought the adjournment, including the likelihood that in the circumstances of the case TRA would imminently revise its assessment. Further, the statement of the Tribunal is curious in light of the fact that the situation before the Tribunal did not appear to be one where the visa applicant had been granted indulgence after indulgence, which could have supported a decision refusing an adjournment.

108        In light of these findings, it follows that the decision of his Honour below ought be affirmed, and the appeal dismissed.

Wednesbury Unreasonableness

109        In conclusion, I note that his Honour below clearly linked issues relevant to adjournment with principles explained in the well-known case of Wednesbury Corporation. In my view this approach was misconceived in the circumstances of this case. The issues before his Honour, as appear from the case presented by Ms Li, were:

    whether a failure to properly consider adjournment went to the jurisdiction of the Tribunal so as to found an application for judicial review; and

    whether the Tribunal had properly considered the request for adjournment.

110        While his Honour unilaterally raised with the parties the issue of unreasonableness “in the Wednesbury Corporation sense”, it is clear from the judgment below that his Honour’s discussion of “unreasonableness” could more properly be described as a consideration of whether the approach of the Tribunal to the application for adjournment was unfair to Ms Li because of a failure of the Tribunal to properly consider that application. In so observing I note the following points.

111        First, the case presented by Ms Li to his Honour in respect of the first ground of the application was clearly framed in terms of procedural fairness ([32]). Indeed his Honour’s decision was clearly couched in terms of principles of procedural fairness, and further whether the failure to adjourn had resulted in a breach of s 357A(3) (for example, at [45]).

112        Second, his Honour accepted the principle that a refusal to adjourn a hearing may, in some circumstances, involve a denial of procedural fairness ([34]).

113        Third, his Honour observed that a decision to adjourn or not was at the discretion of the Tribunal ([41], [42]).

114        Fourth, and by reference to the High Court decision in Sali v SPC Ltd (1993) 116 ALR 625, his Honour accepted the principle that the only case in which an appellate court would interfere would be one in which it was satisfied that the decision to refuse an adjournment was such that “justice did not result” and that the “trial judge had failed to see that such could be the effect of his decision” ([35], [36]).

115        Fifth, and significantly, at [39] his Honour said:

In essence the applicant complains that in refusing it an adjournment the Tribunal acted so unreasonably as to deny it procedural fairness. In making that submission the applicant particularly relies upon the fact that ultimately the prospect of a favourable outcome of the review of his (sic) second skills assessment ought to have been apparent to the respondent if it had acted reasonably and this would have had a significant effect upon the outcome of the application.

(Emphasis added.)

116        This characterisation continued at [43] where his Honour noted:

For the Minister it was contended there was nothing unreasonable in the Tribunal’s decision not to wait or allow further time to the applicant to satisfy the criteria. (Emphasis added.)

and further at [46] where his Honour noted that “(t)he applicant’s complaint was that the Tribunal’s conducted constituted ‘unreasonableness’ in the Wednesbury Corporation (supra) sense”.

117        The introduction by his Honour of principles of “Wednesbury unreasonableness” into the analysis of the decision of the Tribunal was at odds with the actual complaint brought by Ms Li to the Court below, and an unnecessary distraction from the real issues in the case. Courts use the term “unreasonable” in respect of decisions to refuse adjournments without necessarily seeking to invoke Wednesbury Corporation. An instructive – and relevant – example is Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 where the Full Court observed:

[93] SCAR was mentioned in support of a decision recently given by Gyles J in Applicant S296/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. In that case, however, the Tribunal had refused to adjourn a hearing on the grounds of the applicant’s psychiatric condition. While finding no ‘general fault in the reasoning of the Tribunal’ Gyles J held that in the particular circumstances of the case there had been an unreasonable refusal of an opportunity to present a case which was sufficient to breach the rules of procedural fairness (at [5]).

(Emphasis added.)

118        I note that in neither SZFDE nor Applicant S296/2003 were Wednesbury principles in contention.

Conclusion

119        In these proceedings it is clear that his Honour was of the view that the Tribunal had not properly informed itself of matters relevant to a decision to adjourn or not adjourn. This appears from his Honour’s judgment at [45], [49] and [50]. As I have already found, it was the failure of the Tribunal to accord Ms Li a fair hearing within the meaning of s 360 of the Act which constituted an error going to the jurisdiction of the Tribunal. It was not necessary for his Honour, nor is it necessary for this Court, to consider the application of Wednesbury Corporation in this case.

120        I have formed the view that the decision of the Tribunal should be set aside, although for reasons different to those of his Honour. However as I consider that his Honour’s decision was correct, the appeal should be dismissed with costs.

Associate:

Dated:    24 May 2012