FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

THE COURT ORDERS THAT:

1.    The title of the appellant in the Notice of Appeal dated 24 July 2013 be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

the court:

Introduction AND SUMMARY

1    This appeal concerns the exercise of the discretionary adjournment power reposed in the Migration Review Tribunal by s 363(1)(b) of the Migration Act 1958 (Cth) (the Act). The question for the Court is whether, when the Tribunal refused to exercise that power to adjourn the review it was conducting in respect of the first respondent’s visa application, the Tribunal’s exercise of power was legally unreasonable. If it was, then the exercise of power was beyond its jurisdiction and its decision must be set aside.

2    For the reasons we set out below, in our opinion the Tribunal’s exercise of power was, in the circumstances of this case, legally unreasonable and there was no error in the primary judge so finding. The principal factor leading to that conclusion is that the Tribunal was asked by the first respondent to exercise its adjournment power so the first respondent could obtain a re-mark of an English skills test the Tribunal itself had agreed he should be able to take before it concluded its review. In all of the facts and circumstances of this appeal, the Tribunal’s refusal of an adjournment was not a reasonable exercise of power, which is a condition of its validity.

THE FORM OF THE REGULATION

3    Competency in English was at the relevant time determined by the application of a definition contained in reg 1.15C of Migration Regulations 1994 (Cth) (the Regulations), which provided:

If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

(a)    has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(i)    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

(ii)    a score:

(A)    specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B)    in a language test specified by the Minister in the instrument; or

(b)    holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

4    Regulation 1.15C was repealed and substituted by cl 2 of Sch 1 of the Migration Amendment Regulations 2011 (No. 3) (Cth) (2011 Amending Regulations). Regulation 3(2) of the 2011 Amending Regulations provided:

The amendments made by Schedule 1 (other than items [3], [4], [25] and [26]) apply in relation to an application for a General Skilled Migration visa (within the meaning of the Migration Regulations 1994) made on or after 1 July 2011.

5    Regulation 1.15C was again repealed and substituted by cl 12 of Sch 1 of the Migration Amendment Regulation 2012 (No. 2) (Cth) (2012 Amending Regulations). Schedule 1 of the 2012 Amending Regulations commenced on 1 July 2012: see reg 2 of the 2012 Amending Regulations. The amendments which it effected were to apply (with some presently irrelevant exceptions) only in relation to an application for a visa made on or after that date.

6    The Minister submits, and we accept, that the Tribunal was correct to apply the version of reg 1.15C applicable at the time the first respondent lodged his visa application.

7    Regulation 3(2) of the 2011 Amending Regulations preserved the existing version of reg 1.15C insofar as it applied to extant visa applications. When the respondent lodged his application for review with the Tribunal on 20 April 2012, the unamended version of reg 1.15C continued to apply to his visa application. Similarly, the 2012 Amending Regulations did not alter the application of the pre-2011 version of reg 1.15C to the Tribunal’s determination of the review.

8    In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 at [74], the High Court held that a regulation in similar terms to reg 1.15C was to be construed as requiring that a score of at least 6 for each component be obtained by an applicant in the same test.

THE VISA APPLICATION

9    The first respondent applied in June 2010 for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa. One of the criteria which he needed to meet was that he had “competent English”: see cl 485.215 of Sch 2 to the Regulations. Importantly, the case below and the appeal were conducted on the basis that the first respondent was able to satisfy the criteria at any time up until the decision of the Tribunal.

10    It appears from the evidence that there was little action on the visa application until 18 months after the first respondent applied for the visa when, on 11 January 2012, the delegate wrote to the first respondent and asked him to provide an International English Language Testing System (IELTS) test report. The first respondent’s migration agent wrote to the delegate on 1 February 2012 and informed the delegate that the first respondent had registered for an IELTS test on 9 February 2012. The results of that test were provided to the delegate on 19 March 2012.

11    The first respondent scored 6.5 for listening, 4.5 for reading, 5.0 for writing and 7.0 for speaking. Accordingly, by reason of his scores in reading and writing, it was inevitable that the delegate would refuse his visa application. That occurred on 4 April 2012.

REVIEW IN THE TRIBUNAL

12    On 20 April 2012, the first respondent applied to the Tribunal for review of the delegate’s decision. The Tribunal listed the matter for hearing on 9 November 2012 and by letter dated 9 October 2012 informed the first respondent that he was required to “provide evidence of your English language proficiency or evidence that you have booked an IELTS test (next available test is 3 November 2012) or an Occupational English Test within 14 days from the date of this letter. If you are unable to provide this, the Tribunal will require good reason to grant you additional time to obtain evidence of your English language proficiency.”

13    Neither the first respondent nor his migration agent responded to the Tribunal’s request for information within the specified 14 days.

14    The Tribunal noted in its decision that the first respondent telephoned the Tribunal on 26 October 2012 and informed the case officer that he had booked IELTS tests.

15    The first respondent wrote to the Tribunal, requesting “additional time to submit evidence of ‘Competent English’”. In this letter, the first respondent provided evidence that his English was, in fact, competent, as he had qualified for a diploma and two certificates, where assessments were undertaken in English, had lived in Australia since 2007 and had worked in several professions conducting communications in English. For these reasons, he said, he had “the level of English language required to prove that [he has] ‘competent English’ and [he] will be able to score the required bands in IELTS”. Further, he pointed to what he described as his overall score of 6.0 in an IELTS test he sat on 24 September 2011.

16    The first respondent informed the Tribunal in the letter that he had sat a test on 3 November 2012 and would know the results on 16 November 2012. He also informed the Tribunal, and provided evidence, that he had booked tests on 17 November 2012 and 1 December 2012 and would receive results for those tests on 30 November 2012 and 14 December 2012 respectively. He requested the Tribunal to allow him “additional time” so that he could obtain and submit the results for the tests he had undergone or booked.

17    The first respondent’s migration agent made a similar submission to the Tribunal.

18    The Tribunal stated in its decision that the first respondent’s migration agent provided an IELTS test report for a test the first respondent sat on 24 September 2011, in which the first respondent scored 6.5 for listening, 5.5 for reading, 6.0 for writing and 5.5 for speaking.

19    At the hearing on 9 November 2012, the Tribunal agreed to wait until close of business on 31 December 2012 to receive the results of the IELTS tests which the first respondent had booked on 17 November 2012 and 1 December 2012. In its own words, the “Tribunal said it would not agree to wait for further evidence after that date, as he made his visa application over 2 years before and he has had many opportunities to sit several English language tests”.

20    The Tribunal’s deadline of 31 December 2012 passed without the first respondent communicating with the Tribunal. However, the next day, 1 January 2013, the first respondent sent a facsimile to the Tribunal, attaching his test results and a letter. The results showed he had achieved the requisite marks in the December test on all topics except the topic of “Listening”, where he scored 5.0. In his letter to the Tribunal, the first respondent wrote:

Dear MRT representative,

Please find faxed documents in support of my above mentioned MRT Case No.: 1205119. I am sending copies of Test Report Card for IELTS tests taken by me on 17/11/2012 and 1/12/2012. Please be advised that I am going to apply for reevaluation/rechecking of test result for the test taken by me on 1/12/2012 and I hope to get the required result (i.e. enough to prove that I have competent English) for the same after reevaluation/rechecking.

21    On 3 January 2013, the Tribunal sent to the first respondent’s migration agent a letter informing the first respondent that it “has declined to grant any additional time” and that it would “now proceed to a decision”.

22    On 11 January 2013, the Tribunal wrote to the first respondent’s migration agent, affirming the decision under review.

23    The first respondent sought review of this decision in the Federal Circuit Court of Australia. On 3 July 2013, that Court made orders quashing the Tribunal’s decision on the basis that it was unreasonable.

RELEVANT STATUTORY PROVISIONS

24    The Tribunal’s statutory task — to “review” a decision over which it has jurisdiction — is set out in s 348, and on completion of that review the powers it may exercise are set out in s 349 in a form familiar for merits review tribunals.

25    The approach the Tribunal must take on review is set out in s 353, although, as the High Court pointed out in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 (Li), this provision is facultative rather than restrictive:

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.

26    The requirement to invite an applicant to appear and give evidence contained in s 360 is a central aspect of the Tribunal’s procedural fairness obligations:

360    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.

27    The Tribunal’s adjournment power is found in s 363:

363    Powers of the Tribunal etc.

(1)    For the purpose of the review of a decision, the Tribunal may:

    (a)    take evidence on oath or affirmation;

    (b)    adjourn the review from time to time;

    (c)    subject to sections 377 and 378, give information to the applicant and to the Secretary; or

    (d)    require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

…

28    In the context of the review of a decision refusing to grant a student visa because of non-satisfaction of the criterion of competency in English, the High Court has held that the IELTS test does not need to have been conducted before the visa application is made, but can occur during the decision-making process: see Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (Berenguel) at [24]-[27]. The Court observed at [26]:

There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information. The Act specifically provides that the minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.

THE TRIBUNAL’S REASONS

29    In its statement of decision and reasons dated 11 January 2013, the Tribunal described the course of the hearing held by it on 9 November 2012:

The applicant confirmed that he does not currently have evidence of competent English. He confirmed he has booked to sit IELTS tests on 17 November 2012 and 1 December 2012. The Tribunal agreed to wait until close of business on 31 December 2012 to receive the results of those IELTS tests before making its decision. The Tribunal indicated it would not agree to wait for further evidence after that date, as he made his visa application over 2 years before and he has had many opportunities to sit several English language tests. However it would take into account all the evidence before it when it made its decision. It also informed the applicant that his IELTS test results would be verified if he provided evidence that he had scored at least 6 in each test component.

30    The Tribunal then recounted the facsimile received from the first respondent on 1 January 2013 with his IELTS results, his statement that he was going to apply for a re-evaluation of the test he had sat on 1 December 2012, and his request that the Tribunal postpone making its decision.

31    The Tribunal’s reasons for its refusal to wait for the re-mark were expressed in the following terms at [28]:

The Tribunal has seen IELTS test results for the applicant as follows: on 24 September 2011 he scored 6.5 for listening, 5.5 for reading, 6 for writing and 5.5 for speaking; on 9 February 2012 he scored 6.5 for listening, 4.5 for reading, 5 for writing and 7 for speaking; on 17 November 2012 he scored 6 for listening, 5 for reading, 5 for writing and 6 for speaking; and on 1 December 2012 he scored 5 for listening, 6 for reading, 6 for writing and 6 for speaking. On 1 January 2013 the applicant indicated he intended to seek a re-evaluation of the IELTS test he sat on 1 December 2012 however he did not provide any documentary evidence that he had actually made that application. The Tribunal decided to proceed to make its decision because it formed the view the applicant has had a reasonable period of time to obtain evidence of competent English – he made his visa application in June 2010 and he has sat the IELTS test several times. The Tribunal is not satisfied that the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening. Therefore it is not satisfied the applicant meets r.1.15C(a)(i).

32    As was then inevitable, the Tribunal found the first respondent did not meet cl 485.215, which led it to affirm the delegate’s decision.

THE FEDERAL CIRCUIT COURT DECISION

33    The first respondent was unrepresented before the Federal Circuit Court. His argument was expressed thus in his application:

I believe that the Migration Review Tribunal has fell into jurisdictional error by declining me additional time to apply for re-evaluation of the IELTS test taken by me on 1 December 2012 and then wait for the result of that re-evaluation and thus in making this finding that I didn’t meet the requirements of clause 485.215. Its failure to provide additional time to me to apply for the re-evaluation of the result of the test taken me on 01/12/2013 (when the Tribunal has previously, during my personal hearing, agreed to provide me the time to submit the result of that particular IELTS test i.e. the one taken by me on 01/12/2012) involved a denial of procedural fairness.

34    The primary judge recorded in his reasons that although the application was based on an allegation of denial of procedural fairness, the submissions of the Minister also addressed the possibility that the Tribunal’s refusal to delay its decision on the review was unreasonable in the sense discussed in Li 297 ALR 225; [2013] HCA 18. (Li had been handed down approximately a month before the hearing before the Federal Circuit Court.)

35    In concluding that no reasonable tribunal would have refused the adjournment request, the primary judge emphasised three matters. First, that by giving the first respondent an opportunity to submit to it the results of the November and December tests, the Tribunal had implicitly acknowledged that to proceed to a decision before the first respondent had the results of those tests would have denied him a real chance to present his case. Second, the Tribunal expressed no view that the re-mark would be futile, but rather limited its reasoning to the fact the first respondent had sat the IELTS test “several times”. Third, the primary judge considered that the first respondent’s request for a further adjournment “must have conveyed to the Tribunal that he did not consider that he had presented his case”, being the context for which s 360 of the Act provides and in which the adjournment power came to be exercised. In those circumstances, the primary judge found, at [51], the Tribunal’s decision that the first respondent should not be able to submit test results corrected following a re-mark “lacked an evident and intelligible justification”, picking up the language of the plurality in Li 297 ALR 225; [2013] HCA 18 at [76].

THE MINISTER’S SUBMISSIONS ON THE APPEAL

36    The Minister sought to distinguish the facts in the present appeal from the facts on which the High Court’s decision in Li was based. Recognising the central place of the obligation in s 360 of the Act to give a visa applicant a meaningful opportunity to present her or his case, the Minister submitted that, in seeking to apply Li in a given case, it is necessary to have regard to two factors in particular. First, whether the purposes inherent in s 360 were adequately achieved by the process of review as a whole; and, second, having regard to the answer to that question, whether there is a rational justification (whether expressly articulated or not) for refusing to allow further time. In developing those submissions, the Minister also relied on the expression used by the High Court in Li 297 ALR 225; [2013] HCA 18 at [76], and submitted the test was whether the exercise of power by the Tribunal (that is, to refuse an adjournment) had an “intelligible justification”.

37    The Minister submitted that, by using language such as “implicitly acknowledged” in relation to the Tribunal, the primary judge had erroneously approached the requirements of procedural fairness as if the test was based on the Tribunal’s subjective opinion about whether a visa applicant had a reasonable opportunity to put her or his case.

38    The Minister also focused on that part of the primary judge’s reasons which dealt with whether the Tribunal’s conduct before the refusal indicated it accepted the visa applicant had not to that point had a reasonable opportunity to put his case. The Minister submitted the primary judge’s findings about the opportunities afforded to the visa applicant by the Tribunal were erroneous. By agreeing to the first adjournment, the Tribunal had granted the visa applicant an indulgence. It had not agreed to adjourn the hearing because it believed s 360 required it to do so. By reference to the four years that had elapsed since the first respondent’s visa application, and the several IELTS tests he had sat, the Minister submitted the first respondent had been given a reasonable opportunity to present his case which s 360 required. Once the Tribunal’s agreement at the 9 November 2012 hearing to wait until 31 December 2012 was understood as an indulgence, the Minister submitted, there could be no basis for finding the refusal of a second adjournment in any way involved a denial of procedural fairness.

39    The Minister submitted there were a number of factual differences from Li, which should have led the primary judge to find there was no unreasonable exercise of power. Ms Li had been the victim of a fraudulent adviser — she had submitted what she thought was the correct documentation at the start but failed because of the acts of her fraudulent adviser, which her new adviser then sought to remedy swiftly. Next, her adviser “forcefully submitted” that the certifying authority then made some fundamental errors in assessing her documentation, and it was an opportunity to correct those errors with the certifying authority that was sought from the Tribunal on Ms Li’s behalf. Up to the point of her adjournment request, none of the delays in the matter were the fault of Ms Li, but rather the fault of the various organisations that had to consider her case.

40    In contrast, the Minister submitted, the first respondent had not only the time following his visa application but the time prior to his visa application to work on acquiring the necessary results in the language tests. The Minister submitted the Tribunal’s further “indulgence” then gave the first respondent the reasonable time to sit the tests and get the scores he needed. In the current appeal, the Minister submitted, the critical visa criterion was not one where the Tribunal was required to assess an underlying competency: rather, it was a criterion which simply required a visa applicant to produce “a piece of paper”. There was, the Minister submitted (unlike Li) no fraud or egregious conduct underlying the failure to produce the requisite piece of paper.

THE CORRECT APPROACH

41    We do not agree with the Minister’s submission that the correct approach to the disposition of this appeal is to take the facts in Li and engage in a comparison with the facts in this appeal. Nor is that the correct approach in any other appeal to which the principles in Li are contended to apply.

42    It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.

THE PRINCIPLES UNDERLYING LEGAL UNREASONABLENESS

43    The conditioning of a power such as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li 297 ALR 225; [2013] HCA 18, particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J; Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [40] per Gaudron and Gummow JJ; Li 297 ALR 225; [2013] HCA 18 at [88]-[92] per Gageler J. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication.

44    In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):

“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].

45    In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

46    There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal. In the present appeal, some of the justifications put forward by the Minister for the Tribunal’s refusal of the adjournment were not matters mentioned by the Tribunal in its reasons, such as the submission that the first respondent could have sat the IELTS tests up to two years before his visa application, the use by the first respondent of the word “hope” in his letter asking for an adjournment, the absence of reasons advanced by the first respondent as to why the first mark for his 1 December 2012 test was incorrect, the inferences that might be drawn from the first respondent’s failure to obtain the requisite marks in several previous tests and the absence of factors outside the first respondent’s control (by comparison with the facts in Li). None of these matters was relied on by the Tribunal in its reasons.

47    This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

48    The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

49    In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li 297 ALR 225; [2013] HCA 18 at [10], in these tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li at [80] the position of the tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. It might be said there is a different kind of balancing required as between the statute’s exhortation to the tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick” (see ss 353(1), 420(1)), and “according to substantial justice and the merits of the case” (ss 353(2), 420(2)), and the interests of individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual applicant or application: Li 297 ALR 225 at [93] per Gageler J; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [49] per Gleeson CJ and McHugh J; Li 297 ALR 225; [2013] HCA 18 at [15] per French CJ, at [52] per Hayne, Kiefel and Bell JJ), and the manner in which these tribunals are required to perform their functions and exercise their powers:

That context makes clear that it [s 353] cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.

(Li 297 ALR 225; [2013] HCA 18 at [14] per French CJ.)

50    A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J’s comments in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.

51    In the Act, this interaction is best reflected by the scope and purpose of s 360 (s 425 in respect of the Refugee Review Tribunal), which requires the Tribunal to give an applicant a meaningful opportunity — a “real chance” — to appear and present evidence and argument. What is a meaningful opportunity, or a real chance, will be fact dependent in each case. However it is not difficult to see the overlap between the obligation in s 360 and the exercise of the adjournment discretion in s 363. Although the plurality judgment in Li ultimately did not rely on a contravention of s 360, it recognised the central place of that provision in the Tribunal’s function: see Li 297 ALR 225; [2013] HCA 18 at [60]-[62].

52    The language of s 363 ties the exercise of the adjournment power to “the purposes of the review”. This in turn necessitates reference back to the nature and content of the review established by Pt 5. In exercising its discretion for the purposes of the review the Tribunal must be cognisant of the requirements of provisions such as s 360 and of its function under ss 348 and 349 to make the correct or preferable decision on the review.

APPLICATION OF THOSE PRINCIPLES

53    The power in s 363(1) is expressly conferred on the Tribunal for the purposes of the review it is undertaking. It is to be exercised consistently, and not inconsistently, with the purposes of the review, which include the obligation in s 360 to offer a meaningful hearing to a visa applicant. Where the Tribunal considers the exercise of power in s 363(1)(b), the approach cannot be a generalised one: the particular context and circumstances of the review before it are what must inform the exercise of the power. In early January 2013, the Tribunal’s obligation was to consider the first respondent’s request for an adjournment on the basis of the adjournment power being exercisable (one way or the other) for the purposes of this particular review, and to consider the request in the context of the stage the review had reached and the specific content of the application.

54    In the present appeal, the purpose of the review by the Tribunal was to determine whether the first respondent met one visa criterion only: having “competent English” as that term was defined by reg 1.15C.

55    The Tribunal’s statutory task was to determine whether it was satisfied or not satisfied that the visa applicant met that criterion, so as to decide how to exercise its powers under s 349(2) of the Act.

56    By the time the Tribunal came to consider the first respondent’s request made on 1 January 2013 for a further adjournment, the following steps had been taken in the review.

57    The Tribunal had by letter informed the first respondent that, in order to meet the criterion, he could sit another IELTS test, which was to be held at a date after the Tribunal had commenced its review. In other words, it correctly conducted the review on the express basis that it could form its state of satisfaction based on material to be placed before it which was not in existence at the time it started its review.

58    That being the context of its review, at the hearing on 9 November 2012 pursuant to s 360 of the Act, the Tribunal then expressly granted the first respondent time to sit two IELTS tests on 17 November 2012 and 1 December 2012, and agreed to await the results of those tests, so that they could be taken into account in forming its state of satisfaction about whether the first respondent had “competent English”.

59    The Tribunal imposed a deadline for the receipt of the results of those tests of 31 December 2012: that is, New Year’s Eve. Aside from the inference that some period of time needed to elapse between the taking of the test and the availability of results, there is otherwise nothing in the Tribunal’s reasons or the evidence before the Court to explain the selection of New Year’s Eve as a deadline.

60    The first respondent was one day late in complying with the deadline set by the Tribunal, and faxed his results to the Tribunal on 1 January 2013.

61    In that fax, the first respondent asked for an adjournment to allow him to “apply for reevaluation/rechecking” of the 1 December 2012 test result. He had sought to have re-marked only one of the two IELTS tests he sat, and it was the one in which he passed all components except Listening. Listening was the component he had passed on the three previous occasions.

62    The first respondent did not in his fax dated 1 January 2013 say how long the re-mark would take.

63    On 3 January 2013, when the Tribunal informed the first respondent that his application for an adjournment had been refused, it gave no reasons. However, from that date it was inevitable that the first respondent’s application would be unsuccessful and that the decision under review would be affirmed.

64    The Tribunal’s decision on 3 January 2013 was consistent with what it had foreshadowed to the first respondent at the hearing on 9 November 2012. In its reasons for decision given subsequently, the Tribunal recounted what it had told the first respondent at the hearing. The Tribunal stated that it had told the first respondent:

it would not agree to wait for further evidence after that date, as he made his visa application over 2 years before and he has had many opportunities to sit several English language tests.

65    The Minister submitted that, despite this statement made at the hearing on 9 November 2012, the Tribunal’s decision on 3 January 2013 should not be seen as the mere implementation of what it had told the first respondent before he had even applied for a further adjournment. The Minister submitted the Court should find that the Tribunal had given active consideration to the request made on 1 January 2013. We do not agree. The Tribunal gave no reasons for its refusal of the adjournment in its 3 January 2013 letter: the inference is that was because the Tribunal knew the first respondent understood already that the Tribunal would not wait for any more evidence before making its decision, as the Tribunal had told the first respondent precisely that on 9 November 2012. We infer the Tribunal’s decision on 3 January 2013 was the implementation of what it had foreshadowed it would do at the 9 November 2012 hearing and the Tribunal did not give the request on 1 January 2013 any independent, active consideration. What appears at [28] of the Tribunal’s reasons is an ex post facto justification for the decision it had foreshadowed on 9 November 2012 and made on 3 January 2013. Indeed the only matter in the Tribunal’s reasons which is in any way additional or different to what the Tribunal told the first respondent on 9 November 2012 is the statement that the first respondent did not “provide any documentary evidence that he had actually made that application”. That is a statement of fact which reveals no “active consideration” of the adjournment request. Further, the Tribunal did not ask itself how long the re-mark would take.

66    Without active consideration of the adjournment request, on its merits and in context at the time it was made, the refusal cannot be said to be a legally reasonable exercise of power.

67    Even if we are wrong to draw that inference, and the passage in the Tribunal’s reasons should be read as reflecting independent and active consideration of the adjournment request after its receipt, the reasons reveal only two grounds relied upon by the Tribunal. The first reason was the absence of “any documentary evidence that he had actually made that application [for a re-mark]”. The second reason was the Tribunal’s opinion that the first respondent had had a “reasonable period of time to obtain evidence of competent English”.

68    Neither of these grounds suggests the adjournment application was considered by the Tribunal in the context of the manner in which the review had been conducted, nor the steps which had already been taken in the review with the Tribunal’s agreement. The first respondent sought the adjournment for a highly specific purpose clearly articulated by him: see Li 297 ALR 225; [2013] HCA 18 at [122] per Gageler J. The Tribunal’s grounds do not suggest the first respondent’s request was considered by reference to the specific content of the adjournment request made by the first respondent.

69    Given the nature of the visa criterion, and in order to give purpose to the merits review, the Tribunal conducted the review on the basis that the first respondent should be able to sit an IELTS test after his application for review was lodged with the Tribunal. This is consistent with the principles set out earlier in Berenguel 264 ALR 417; [2010] HCA 8 at [24]-[27] and the Tribunal acting on the most up-to-date information.

70    Further, the steps already taken in the review were that the Tribunal had agreed to wait until the results of the 1 December 2012 IELTS test. In a substantive sense, it had agreed to consider the review of the visa application on the basis of the results of that test. That should be understood as an agreement to consider the review application on the basis of test results confirmed to be accurate. Indeed, the Tribunal had itself told the first respondent at the 9 November 2012 hearing that “his IELTS test results would be verified if he provided evidence that he had scored at least 6 in each test component”.

71    The sole purpose of a re-mark is to ascertain whether the initial test marking is an accurate reflection of a student’s performance on that test. The mark may go up, or it may go down: either way its purpose is to ensure the test result is an accurate reflection of performance.

72    The first respondent was requesting an opportunity to confirm or verify that the results of the 1 December 2012 IELTS test were an accurate reflection of his performance in that test. He was not requesting an opportunity to sit another test. The request for an adjournment of the Tribunal’s review while the re-mark of the 1 December 2012 IELTS test was obtained must have conveyed to the Tribunal that the first respondent did not consider that he had presented his case: the Tribunal does not appear to have considered this: see Li 297 ALR 225; [2013] HCA 18 at [79] per Hayne, Kiefel and Bell JJ.

73    There was, objectively, a reasonable basis to believe the mark for Listening may not have been an accurate reflection of the first respondent’s performance. He had passed that component on all three occasions when he sat the IELTS test previously. There was no evidence he had applied for a re-mark before, in relation to any of the other IELTS tests.

74    Given that the tests were conducted frequently (for example, mid-November and then again at the start of December) it was unlikely that a re-mark process would be long or complex. As we have said, the Tribunal did not address how long a re-mark would take.

75    There was no objective or intelligible justification given by the Tribunal for refusing the adjournment. There were no grounds to believe the period required for the re-mark would be very long, given the frequency of the IELTS testing schedule. The first respondent had a basis in the marks he had received in the past to have a level of confidence that the re-mark might deliver a 6 or above in Listening. The whole exercise was aimed at producing for the Tribunal a verified and accurate mark of a test it had agreed to the first respondent taking and using as evidence in the review.

76    There was no evidence about any factual reason why the Tribunal needed to make a decision in early January 2013. There was no prejudice to anyone from a short adjournment of the review, but there was significant and inevitable prejudice to the first respondent if the adjournment were refused. His application for review would be doomed to failure. The Minister accepted that the refusal by the Tribunal to adjourn was not legitimately affected by policies of which the Court has no experience.

77    If a proportionality analysis were undertaken (cf Li 297 ALR 225; [2013] HCA 18 at [30], [74]), it could be said that the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal’s conduct of the review to that point, to what was at stake for the first respondent, and what he might reasonably have hoped to secure through a re-mark.

78    There will be orders dismissing the appeal, with costs.

Associate:

Dated:    4 February 2014