FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The Federal Circuit Court’s orders dated 12 June 2018 be set aside.

3.    The originating application dated 1 November 2016 be dismissed.

4.    The first respondent pay the appellant’s costs of the proceeding below, fixed in the amount of $5,500, as well as the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J

1    This appeal is from a judgment and orders dated 12 June 2018 by the Federal Circuit Court of Australia (FCCA). The judgment is reported as Haq v Minister for Immigration and Border Protection [2018] FCCA 1523.

2    The central issue in the appeal is whether the primary judge erred in finding that it was not legally unreasonable for the Administrative Appeals Tribunal (AAT) to refuse a request made by the review applicants (the respondents in the appeal) that the AAT defer making a decision on the review application so the respondents could submit material in support of their application.

3    For the following reasons, the appeal should be allowed.

Summary of background facts

4    On 30 January 2015, the respondents applied for Temporary Business Entry (Class UC), Temporary Work (Skilled) (subclass 457) visas (457 visas). The first respondent was the primary applicant. His wife and child were also applicants as members of his family unit.

5    One of the criteria set by cl 457.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) for a 457 visa was as follows:

457.223

…

(4)    The applicant meets the requirements of this subclause if:

(a)    each of the following applies:

(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

…

6    These criteria required that, at the time of the decision whether or not to grant a 457 visa, there be a current approved nomination of an occupation relating to the visa applicant by a standard business sponsor.

7    Mr Haq was sponsored to work with an entity called A1 Hotel Group Pty Limited (A1 Hotel Group) as a hotel manager at Batlow. Mr Haq’s previous 457 visa ceased on 31 January 2015 and, in those circumstances, he lodged his new 457 visa application on 30 January 2015. He was again sponsored by A1 Hotel Group.

8    The Minister’s delegate refused the visa application on 1 July 2015 on the basis that Mr Haq was not nominated by an approved sponsor because, as at that time, A1 Hotel Group was no longer an approved business sponsor.

The AAT proceeding

9    On 21 July 2015, the respondents lodged an application for review in the AAT of the delegate’s decision. By a letter dated 22 July 2015 from the AAT, they were told that the Department had been requested to provide the AAT with all documents and files which it considered to be relevant to the review and that if they wished to provide material or written arguments, they should do so “as soon as possible”.

10    By a letter dated 10 August 2016, the AAT further informed the respondents that it had been unable to make a favourable decision based on the material before it and that, in those circumstances, a hearing would be conducted on 30 September 2016 to which they were invited to attend. The respondents were informed that the AAT “will only change this date if satisfied that you have a very good reason for being granted an adjournment”. Further, they were told that any additional documents or information which they wished to rely upon at the hearing should be provided to the AAT by 23 September 2016.

11    By an email dated 18 August 2016, the respondents’ migration agent informed the AAT that the respondents and the migration agent would attend the hearing.

12    On 29 September 2016 (i.e. the day before the scheduled hearing), the first respondent wrote to the AAT and said that his situation had changed since the review application was lodged. He said that he no longer had a sponsor or nominator and that “my application in the current situation is unlikely to be successful”. He added:

I have spoken to numbers of employers and they are ready to file the nomination for me however it is taking some time to collect the documents. In the meantime, I seek the extension of the time to submit a new Nomination documents from a different Employer (sic).

Kindly allow me some time (about 4 weeks) to submit documentations.

13    An AAT staff member then contacted the respondents’ migration agent. A case note records the migration agent as having confirmed that she was not aware that the first respondent had requested an extension of time. The case note records that the migration agent planned to cease representing the respondents. After obtaining contact details from the migration agent, the staff member telephoned the first respondent and left a message stating that his request for an extension of time had been considered by the AAT member, but it had been refused.

14    A second case note also dated 29 September 2016, records the first respondent having returned the staff member’s call and that the first respondent said that he proposed to attend the hearing the following day.

15    The AAT hearing proceeded on 30 September 2016. The respondents attended, but not their migration agent.

16    A copy of the transcript of the AAT hearing was not included in the appeal book (nor was a copy included in the evidence below). As will shortly emerge, however, it is evident from the AAT’s reasons for decision that, at the hearing, the first respondent reiterated his request that he be given more time before the AAT made a decision and he explained to the AAT why he said that this was necessary.

17    After setting out some background matters, the AAT noted in its reasons for decision that Mr Haq said that he had been informed by A1 Hotel Group “a few months ago” that it was not going to nominate him and that “it was a few months ago” that he began looking for alternative sponsors. He said this in support of his request for an adjournment so that he could obtain a nomination application by a prospective employer. Mr Haq told the AAT that the owner of the Red Steer Hotel in Wagga Wagga (the Red Steer) was already an approved sponsor and that the owner was “thinking about” offering him employment in the role of Hotel Manager and that this discussion had occurred “a few weeks ago”. Mr Haq did not know the full name of the owner and he confirmed that he had not yet received a written offer of employment. He also said that he had not obtained a written reference from A1 Hotel Group and, to his knowledge, the owner of the Red Steer had not called that company for a reference check. It appears from the terms of [10] and [14] of the AAT’s reasons for decision that it viewed Mr Haq’s request as not being in the nature of an application to have the hearing adjourned, but rather an application for the AAT to give him more time before it determined his review application. There is, however, some ambiguity on this matter (see further [42] below).

18    It is desirable to set out relevant parts of [12]-[14] of the AAT’s reasons for decision, which explain why Mr Haq’s request was refused:

12.    … Mr Haq acknowledged to the Tribunal that, in circumstances where he has known for some months that his current employer would not be pursuing a new nomination, a prospective employer has not yet made any reference check, he has not yet received a letter of offer of employment from that prospective employer and no new nomination application had been lodged, it was uncertain when - and even if - he would become the subject of an approved nomination. His prospective sponsor, the Red Steer, is still “thinking about” offering him employment.

13.    The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975. In this case, the Tribunal considered whether it should adjourn the review to allow Mr Haq additional time in which to provide further evidence to support his review application. There is no obligation on the Tribunal to delay its decision making, merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion: Huo v MIMA [2002] FCA 617; Manna v MIMC [2012] FMCA 28. This can apply, in certain circumstances, even where the Tribunal is considering a Subclass 457 visa refusal and a nomination application lodged by an approved sponsor is pending before the Department: Chen v MIBP [2016] FCCA 2351. In this regard, the Tribunal considered: whether, in the circumstances of this case, evidence that Mr Haq meets cl.457.223(4)(a) of Schedule 2 of the Regulations by having an approved nomination made by an approved sponsor is likely to be forthcoming: whether he has had a fair opportunity to provide the relevant information or documentation; any previous adjournment requests; and, the significance of the information or documents to him.

14.    In its acknowledgement letter of 22 July 2015, the Tribunal invited the applicants to provide material or written arguments in support of their review applications. Further, in its written invitation of 10 August 2016 to attend the hearing, the Tribunal noted it had been unable to make a favourable decision on material before it and invited the applicants to provide any additional documents or information they wish to rely on during the hearing. No additional information or documentation was provided, apart from Mr Haq’s request for an adjournment received the day before the hearing. It is clear to the Tribunal that, based on Mr Haq's oral evidence, it is uncertain not only if (and when) he will be offered employment with the Red Steer but also if (and when) a nomination application will be lodged with the Department and, finally, if (and when) he will become the subject of an approved business nomination. The Tribunal also notes the absence of any statement or oral evidence from a representative of the Red Steer. Having regard to all of the circumstances of this case, the Tribunal considers that Mr Haq has had sufficient time to obtain evidence of lodgement of a nomination application by the Red Steer to justify his request for a delay by the Tribunal in its decision as to whether he meets cl.457.223(4)(a) of Schedule 2 of the Regulations. The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

19    Having refused the request, the AAT affirmed the delegate’s decision on the basis that Mr Haq did not satisfy cl 457.223(4)(a).

The FCCA proceeding

20    The respondents sought judicial review of the AAT’s decision in the FCCA. They were represented by a solicitor (who also represented them in the appeal).

21    The primary judge upheld their contention that the AAT’s decision was unreasonable in the legal sense.

22    After setting out the background facts along similar lines to those summarised above, the primary judge referred to some relevant authorities, including Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (SZVFW Full Court).

23    Her Honour concluded that the AAT’s decision was without “an intelligible justification” for reasons which are set out in [34] and [38] of her reasons for judgment:

34.    In my view, the Tribunal’s decision was without an intelligible justification for the following reasons:

i)    There was evidence before the Tribunal from the Applicant that the Red Steer was thinking about offering him employment in the role of Hotel Manager pursuant to earlier discussion he had had with Red Steer “a few weeks ago”. This was evidence before the Tribunal of the potential by the Applicant of sponsorship with the Red Steer.

ii)    In the light of the Applicant’s evidence of his discussions about prospective employment with the Red Steer, it was unreasonable for the Tribunal to require the Applicant to obtain evidence from the Red Steer as to its intentions. It was therefore perfectly reasonable that the Applicant may have no documentation from the Red Steer about his prospects.

iii)    The Applicant gave evidence that he had been looking for alternative sponsors for a few months having been informed that his A1 Hotel Group was not able to pursue its nomination of the position currently occupied by him.

iv)    The Applicant’s failure to provide further documents in answer to the Tribunal’s invitations to the Applicant for documents sent on 22 July 2015 and 10 August 2016 to send further material, do not provide an intelligible justification for the Tribunal’s refusal to grant the Applicant a four week adjournment, given that at those times the Applicant had not had the discussions with Red Steer.

v)    The Applicant’s request was for a period of four weeks and was not otherwise open ended, unlike the position in Chen v Minister for Immigration & Anor [2016] FCCA 2351.

vi)    The Tribunal’s decision was made by it the day before hearing from the Applicant. The case notes referred to above plainly state that the Tribunal Member had made a decision to refuse the Applicant’s request for an application for extension of time to submit further documents. In those circumstances, it is of concern that the Tribunal Member may have pre-judged her decision dated 30 December 2016 to refuse the Applicant’s request for a further four weeks to provide evidence of a new sponsor, being Red Steer.

vii)    The fact that the four week adjournment could not guarantee sufficient documentation being provided by the Applicant to enable him to meet the criteria, in my view, is not sufficient to deny the Applicant’s request. The request for four weeks in all the circumstances was a reasonable request. The loss of the earlier sponsor was not due to any conduct on the part of the Applicant and the evidence before the Tribunal was that he was having discussions with the Red Steer who were thinking of offering him employment in the role of Hotel Manager.

…

38.    The Tribunal’s decision in the case before this Court was in all the circumstances legally unreasonable and without an evident and intelligible justification. The Tribunal’s reasons, such as they are, placed weight on factors not relevant to the request for a four week adjournment. Namely, a failure by the Applicant to provide material from the Red Steer Hotel about prospective employment of the Applicant given the fact that the Applicant had had discussions with the Red Steer “only a few weeks ago”. The Tribunal did not disbelieve the evidence provided to it by the Applicant. It therefore did have evidence of a potential new sponsor for the Applicant for a job in the same position in which he was currently employed. The request for four weeks was a reasonable time for the Applicant to pursue that prospective employment.

24    Having found that the AAT’s refusal to adjourn the matter for four weeks lacked an intelligible justification, the primary judge held that the AAT’s decision was affected by jurisdictional error.

The appeal

25    The Minister’s sole ground of appeal is that the primary judge erred in finding that the AAT’s decision was legally unreasonable. The Minister contended that the AAT had given an intelligible justification for refusing the adjournment as set out in [13] to [14] of the AAT’s reasons for decision.

The parties’ submissions summarised

26    The Minister submitted that the AAT’s reasons for refusing an adjournment were “perfectly intelligible”, with reference to the matters to which the AAT referred. The Minister emphasised the importance of the Court not substituting its own view as to how a discretion should be exercised when considering the ground of legal unreasonableness, citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [47].

27    In response, Mr Haq submitted (through his solicitor) that the circumstances which led to his request for more time were entirely beyond his control, in contrast with the circumstances in the SZVFW litigation. He submitted that it was he who told the AAT that his sponsor had withdrawn its sponsorship review application shortly before the AAT hearing and notwithstanding that the review application had been on foot since at least May 2015.

28    Mr Haq also submitted that the requested four weeks deferral was not unreasonable having regard to the fact that the work for which he was applying was in “western NSW ie Wagga” and that “commerce in these regions moves at a slower pace than in Sydney or Melbourne”. It was also submitted that it was relevant that Mr Haq lived in Batlow, which was described by his solicitor as being “on the outskirts of Wagga”.

Consideration and disposition of the appeal

29    As noted above, SZVFW Full Court was one of the authorities referred to by the primary judge at [37] as summarising general principles relating to the ground of judicial review of unreasonableness in the legal sense.

30    This decision was subsequently reversed on appeal by the High Court (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW High Court). I do not consider that the High Court disapproved of any of the general principles which are set out in the extract from SZVFW Full Court at [37] of the primary judge’s reasons for judgment. Rather, the appeal succeeded on the ground that the Full Court had erred because, instead of determining for itself whether the decision of the Refugee Review Tribunal (RRT) in that case was legally unreasonable and whether the primary judge’s reasoning for finding to the contrary was correct, the Full Court had deferred to what the primary judge had held in the judicial review proceeding below (see at [18] per Kiefel CJ, [55]-[56] per Gageler J, [117] per Nettle and Gordon JJ and [154]-[155] per Edelman J). The High Court held that the Full Court also erred in not finding that the RRT’s decision to proceed to make a decision without taking any further action to allow the respondents to appear was not, in the particular circumstances, legally unreasonable.

31    SZVFW High Court is relevant in the following respects. First, the decision reaffirms that the question whether or not an administrative decision is unreasonable requires close attention to be given to the scope, purpose and objects of the statutory source of the power under which the decision was made (at [54] per Gageler J, at [79] per Nettle and Gordon JJ, and at [135] Edelman J).

32    Secondly, there is implicit affirmation of what the Full Court had said in Singh at [47] and [48] per Allsop CJ, Robertson and Mortimer JJ, namely:

(1)    that legal unreasonableness is “invariably fact dependent and requires a careful evaluation of the evidence”;

(2)    this involves applying the relevant general principles to the particular factual circumstances of the case and not an analysis of factual similarities or differences between individual cases;

(3)    where reasons are provided, they are “the focal point for the assessment” (noting that reasons were provided by the Tribunal in Li but were very limited in contrast with those which were provided in SZVFW High Court); and

(4)    where the reasons disclose a justification for the exercise of a statutory power, only rarely would a Court find that the exercise of a discretionary power was unreasonable (see at [84] per Nettle and Gordon JJ).

33    It is desirable to say something more about the significance of the fact that a decision-maker has provided reasons as to why a discretionary power was exercised in a particular way. As noted above, in those circumstances, the reasons are “the focal point for the assessment” of legal unreasonableness. Does that mean, however, that the supervising court is confined to assessing those reasons in determining whether or not there is legal unreasonableness? In Singh, the Full Court, without determining the matter, stated the following at [47]:

… 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.

34    At first glance, it might be thought that a broader view was taken by at least three of the Justices in SZVFW High Court. In explaining why the Refugee Review Tribunal’s decision there to proceed under s 426A of the Act was not legally unreasonable, Nettle and Gordon JJ referred not only to the reasons given by the Tribunal in support of its decision, but at [121] and [122] their Honours identified additional reasons as to why the Tribunal’s decision was not legally unreasonable. Similarly, Edelman J at [141] identified three further reasons, additional to those given by the Tribunal, as to why its decision was not legally unreasonable.

35    The obiter observations in both Singh and by these three Justices in SZVFW High Court are not, however, irreconcilable. The observations of the Full Court in Singh were directed to the question whether or not the reasons given by the decision-maker disclose an intelligible justification for the exercise of power. If they do not, the process of decision-making may reveal jurisdictional error. If the reasons do provide an intelligible justification for the exercise of the power, legal unreasonableness is unlikely to be found, unless the ultimate exercise of the power itself is legally unreasonable, but that will be rare. Having regard to the approach of the three Justices in SZVFW High Court, where the reasons do disclose an intelligible justification for the exercise of the power, the judicial review court may point to additional reasons which were not relied upon by the primary decision-maker as reinforcing the court’s finding that there was no unreasonableness in the legal sense. A court exercising judicial review jurisdiction is not, however, entitled to replace a primary decision-maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker. That would involve a transgression of the proper limits of judicial review. Those limits are not transgressed, however, where the judicial review court finds that the reasons given by the decision-maker do provide an intelligible justification, a conclusion which is then reinforced by additional reasons which could have been relied upon by the decision-maker but were not.

36    There is a further relevant principle which warrants emphasis. It is well established that where judicial review jurisdiction is being exercised in relation to an administrative decision and a decision-maker has provided reasons for the decision, the court must be wary of turning a review of those reasons upon proper principles of judicial review into a reconsideration of the merits of the decision. As the High Court plurality stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, “… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. In assessing whether such reasons disclose an intelligible justification for the exercise of the power, the propositions expressed in Wu Shan Liang need to be borne in mind.

37    It is also well established that a statutory discretionary power contains an area of decisional freedom (see, for example, Li at [28] per French CJ and at [66] per Hayne, Kiefel and Bell JJ). The “courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”, and an important question “is where that area lies” (see SZVFW High Court at [11] per Kiefel CJ). As Gageler J stated in SZVFW High Court at [58], a judicial review should not enter the zone of discretion committed to the administrator, by the judicial review judge forming his or her own conclusion (see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [21] per Allsop CJ and at [76] per Griffiths J). In applying a standard of legal reasonableness the Court should not substitute the Court’s view as to how a discretion should be exercised for that of the decision-maker. Moreover, depending upon the terms of the relevant discretionary power, the decision-maker will generally have “a degree of latitude in determining what is fair and just in a given case” (SZVFW High Court at [13] per Kiefel CJ). More recently, the High Court has described the standard of legal unreasonableness which is implied as a condition of the exercise of a statutory power as “a demanding standard” (see TTY167 v Republic of Nauru [2018] HCA 61 (TTY167) at [24] per Gageler, Nettle and Edelman JJ).

38    Applying the principles established in authorities such as Li, Singh, Stretton, SZVFW High Court, TTY167 and Wu Shan Liang, I will first summarise the key statutory provisions which bear upon the question of unreasonableness before turning to consider the relevant primary factual features in this particular case.

39    Where an application for review is properly made to the AAT under s 347 of the Migration Act 1958 (Cth) (Migration Act), the AAT has a statutory obligation under s 348 to review the decision the subject of the review application (subject to an exception in s 348(2) which is not relevant here). In the particular case here, the purpose of the AAT’s review was to determine whether or not the respondents should be granted a 457 visa under s 65 of the Migration Act.

40    In reviewing a Part 5 – reviewable decision, the AAT is empowered to exercise all the powers and discretions that are conferred by the Migration Act on the primary decision-maker (s 349(1)). The AAT is empowered to affirm the primary decision or vary it or do one of the other things specified in s 349(2). The legislation does not expressly impose any particular period within which the AAT is to make a decision, either from the time when the review application is lodged or from the time when the AAT conducts a hearing in the circumstances set out in s 360. The timing of the making of a decision is left to the AAT to determine, within the framework of the statutory provisions which affect the discharge of its review function, and subject to judicial review by the Court. Where the AAT makes its decision on a review (other than an oral decision), the Tribunal is obliged to comply with the relevant requirements in s 368, including making a written statement which sets out the specified matters and records the day and time the statement is made. It is then provided in s 368(2) that a decision on a review (other than an oral decision) is taken to have been made by the making of the written statement and on the day, and at the time, the written statement is made. Where a decision on a review is given orally by the Tribunal, s 368D applies. It provides that the decision is taken to have been made, and notified to the review applicant, on the day and at the time the decision is given orally.

41    There is an express power conferred upon the AAT to adjourn the review from time to time (s 363(1)(b)).

42    There is some ambiguity as to whether the AAT in this case dealt with the respondents’ request as an application for an adjournment or as a request for the AAT to defer the making of a final decision. The ambiguity is evident in [10] where reference is made to Mr Haq requesting the AAT to “postpone making its decision on his visa application for 4 weeks”; the reference at the beginning of [13] to the AAT having power under s 363(1)(b) of the Act to “adjourn a review”; and its reference at the end of [14] to its conclusion that it did not consider that it was appropriate to “postpone making its decision”. There was no contest between the parties that the resolution of the appeal did not turn on whether the AAT had determined not to adjourn the hearing, as opposed to determining that it would not delay the making of a final decision. I will proceed on the basis that the AAT adopted the latter course.

43    The AAT was obliged to conduct its review of the delegate’s decision in accordance with any relevant provisions of both the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Divisions 4 and 5 of Pt 5 of the Migration Act contain various provisions relating to the AAT’s powers and the conduct of a review of a “Part 5 – reviewable decision” (as defined in s 338).

44    In reviewing a Part 5 – reviewable decision, the AAT is not bound by technicalities, legal forms or rules of evidence and is obliged to act “according to substantial justice and the merits of the case” (s 353). Section 357A provides that Div 5 of Pt 5 is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with and that, in applying that Division, the AAT “must act in a way that is fair and just” (see also s 2A of the AAT Act). Under s 358, an applicant for review may give the AAT a written statement in relation to any matter or fact that the applicant wishes the AAT to consider. Under s 360, the AAT is obliged to invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, subject to exceptions set out therein.

45    Turning now to the relevant particular facts and circumstances of this case, the following matters are significant.

(1)    The respondents (and their then migration agent) were on notice from the time they received the AAT’s letters dated 22 July 2015 and 10 August 2016 that they could provide additional evidentiary material in support of their review application. Moreover, the notification which was sent to the migration agent on 10 August 2016 informed the respondents that the AAT was unable to make a favourable decision on the available material and that a hearing would be conducted on 30 September 2016 (i.e. more than seven weeks later).

(2)    The 22 July 2015 letter did not set a finite deadline for providing any additional material, but it urged the respondents to do so “as soon as possible”. In substance, it was an open invitation to provide information as soon as possible, but before the hearing. The 10 August 2016 letter contained a request that any additional documents or information which the respondents wished to rely on at the hearing scheduled for 30 September 2016 be provided to the AAT by 23 September 2016. The respondents were on clear notice that they could provide additional documents or information in support of their case. I see no reason why that notice did not extend to any request by them that the AAT defer making a decision on their review application for another four weeks.

(3)    The respondents provided no additional written material prior to the hearing (other than Mr Haq’s written request dated 29 September 2016 for an extension of time), including any material which corroborated Mr Haq’s oral evidence given to the AAT on 30 September 2016 regarding the prospects of his employment with the Red Steer.

(4)    Mr Haq had known for at least “a few months” that A1 Hotel Group would not be supporting his 457 visa application. Moreover, in light of the numerous uncertainties and imponderables surrounding the possibility that the Red Steer might support him which are described in [12] of the AAT’s reasons (see [18] above) it was reasonably open to the AAT to find at [14] that it was uncertain if and when:

(i)    Mr Haq would be offered employment with the Red Steer;

(ii)    a nomination application would be lodged with the Department; and

(iii)    Mr Haq would become the subject of an approved business nomination.

(5)    As the AAT also noted at [14], Mr Haq provided no statement or evidence from the Red Steer which supported his claims.

(6)    Mr Haq was well aware that unless he had a sponsor/nomination, his review application was unlikely to be successful, as he explicitly acknowledged in his letter dated 29 September 2016.

46    In my respectful view, the AAT’s reasons, which provide the focus for an assessment of legal unreasonableness, do disclose an intelligible and rational justification for not deferring the making of a decision on the review application. The relevant reasons are set out at [18] above. In brief, the AAT reasoned that:

(1)    As Mr Haq himself had acknowledged, it was uncertain if and when he would become the subject of an approved nomination. Such uncertainty flowed from the fact that Mr Haq had known for some months that A1 Hotel would no longer sponsor him, and that Red Steer had not yet made any reference check nor provided him with a letter of offer of employment. Nor had Red Steer lodged a new nomination application. Red Steer was merely “thinking about” offering him employment.

(2)    Although the AAT had a discretion to allow Mr Haq additional time in which to provide further evidence, it was not obliged to do so. In determining whether it should exercise its discretion in Mr Haq’s favour, a relevant matter was whether an approved nomination made by an approved sponsor was “likely to be forthcoming”, whether Mr Haq had had a fair opportunity to provide the relevant information or documentation, any previous adjournment requests, and the significance of the information or documents to Mr Haq. It might be interpolated that it is evident from this last reference that the AAT was conscious of the fact that the consequence for Mr Haq of not having an approved sponsor and nomination would be that the AAT would dismiss his review application on the basis that he did not satisfy the relevant criteria at the time of the AAT’s decision.

(3)    Mr Haq was on notice from the AAT’s letters dated 22 July 2015 and 10 August 2016 that he had the opportunity to provide any additional documents or information which he intended to rely upon at the AAT hearing, and none was provided.

(4)    Relying on Mr Haq’s oral evidence before the AAT, it was uncertain if and when any of the following matters would occur:

(i)    Red Steer would offer him employment;

(ii)    a nomination application would be lodged with the Department; or

(iii)    Mr Haq would become the subject of an approved business nomination.

(5)    No statement or oral evidence had been provided to the AAT from a representative of Red Steer.

(6)    Having regard to all the circumstances of the case, the AAT considered that Mr Haq had had sufficient time to obtain evidence of the lodgement of a nomination application by Red Steer to justify his request that the AAT postpone the making of its decision.

47    I respectfully disagree with the primary judge’s finding at [34(ii)] that it was unreasonable for the AAT to require Mr Haq to obtain evidence from the Red Steer as to its intentions and that it was “therefore perfectly reasonable that the Applicant may have no document from the Red Steer about his prospects”. It was a matter for Mr Haq to decide what evidence he should obtain to support his adjournment application, including the desirability of providing written material which corroborated his own personal evidence. As noted above, the AAT had informed the respondents, through their migration agent, by its letters dated 22 July 2015 and 10 August 2016 that additional evidentiary material could be provided in support of the review application. The AAT was not obliged to accept and act upon Mr Haq’s oral evidence, particularly having regard to all of its uncertainties and vagaries. It was open to the AAT to rely on the respondents’ omission to provide any supporting documenting material.

48    I also respectfully disagree with the primary judge’s reasoning at [34(iv)] that the respondents’ failure to provide the AAT with further material in response to the invitations in the letters dated 22 July 2015 and 10 August 2016 did not provide an intelligible justification for not granting a four week adjournment “given that at those times the Applicant had not had the discussions with Red Steer”. This overlooks the fact that the AAT’s invitations for the respondents to provide further material were still on foot at the time when Mr Haq said he had had discussions with the owner of the Red Steer. As noted above, the first letter was effectively open-ended and the second letter set a deadline of 23 September 2016, which was after the discussion which Mr Haq claimed in his oral evidence on 30 September 2016 had occurred “a few weeks ago”.

49    Among the matters identified by the primary judge as supporting her finding that the AAT’s decision lacked an intelligible justification was her concern that the AAT member may have prejudged her decision because of her refusal the previous day to extend time for the respondents to submit further documents. Although later in her reasons for judgment, her Honour made clear at [41] that she did not make a finding of apprehended bias because it had not been raised by the parties, she did take this concern into account in her assessment of whether or not there was an intelligible justification (see [34((vi)]). Her Honour also noted at the end of [41] that “the observations of the Court’s concern should still be noted”.

50    Merely because the AAT member had previously refused an earlier adjournment request did not necessarily mean that she had prejudged the oral request made on 30 September 2016. It is not unusual for a person conducting a hearing, whether in a tribunal or in a court, to be required to determine multiple requests for an adjournment but that does not necessarily involve prejudgment. The primary judge seemed to consider that there was a problem of prejudgment merely because an earlier request had been refused. That fact alone cannot be determinative, particularly in a case such as this where the AAT has given detailed and rational reasons why the second request was rejected.

51    As to the primary judge’s finding at [34(vii)] that it was insufficient to deny Mr Haq’s request because the requested four week postponement could not “guarantee sufficient documentation being provided by the Applicant to enable him to meet the criteria”, there are two things to say. First, the AAT did not use the word “guarantee”. Secondly, and more significantly, in declining to grant the requested four week postponement, the AAT was entitled to adopt the course that it did and for the reasons it gave, particularly with reference to the uncertainties and vagueness in Mr Haq’s own evidence concerning his contact with the Red Steer owner, as identified in the extracts from [12] and [14] of the AAT’s reasons for decision (which are set out at [18] and are summarised at [45] above), as well as the other matters which are mentioned in [17] above. The probability of Mr Haq being able to produce the necessary documentation within the requested four week period was a relevant matter to be assessed by the AAT. It was clearly open to the AAT to come to the view which it did on this matter having regard to Mr Haq’s oral evidence and the absence of any corroborating material.

52    In my respectful view, the AAT’s reasons for decision disclose an evident and intelligible justification for its decision. Moreover, the decision was within the AAT’s “area of decisional freedom” or “zone of discretion”. I do not believe that there are exceptional circumstances in this case which justify judicial intervention on the basis that the outcome of the exercise of the power is legally unreasonable. The primary judge erred in concluding that the AAT’s reasons did not provide an intelligible justification for its decision.

53    Since drafting these reasons for judgment, I have had the opportunity to review the draft reasons for judgment of Colvin J. It is appropriate to make the following observations. First, I respectfully disagree with his Honour’s findings that the AAT did not identify the likely consequences if the adjournment (or deferment of the decision on the review application) was refused, or weigh those matters in the balancing exercise. Mr Haq himself had made clear in his letter dated 29 September 2016 that his review application was unlikely to succeed if he did not have an approved sponsor/nominator. Moreover, at the outset of the AAT’s statement of decision and reasons, it made explicit reference to the fact that one of the criteria for a 457 visa which had to be satisfied at the time of decision was that there be a current and approved nomination of an occupation relating to the visa applicant by a standard business sponsor (see the AAT’s reasons for decision at both [3] and [8]). Finally, the AAT expressly referred to the relevance of the “significance of the information and documents” to Mr Haq at the end of [13] of its reasons for decision.

54    Secondly, I respectfully disagree with his Honour that the AAT’s reasons failed to provide an intelligible justification for its decision because there was “no consideration of the significance of the fact that the Haq family were advancing the request for an additional four weeks on their own behalf without the assistance of a migration agent and without any suggestion that they had been told that they would need some form of independent verification in order to be able to make the request”. As noted above, the migration agent gave notice only shortly before the hearing that it planned to withdraw its representation of the Haq family. In any event, the AAT’s letters dated 22 July 2015 and 10 August 2016 specifically invited the respondents to provide material or written arguments and information which they wished the AAT to consider. It was made clear in the covering letters which were addressed to the respondents’ migration agents that, by providing the agent with the notifications, it was deemed that they had been given to the review applicants themselves (which accurately reflected the effect of s 379G(2) of the Act).

55    Thirdly, I respectfully disagree with his Honour’s finding that the AAT “did not act on the basis that there was little or no prospect of the nomination being obtained such that there would be no purpose in acceding to the request for a four week deferment”. The AAT expressly stated at [13] of its reasons for decision that one of the matters it considered was whether an approved nomination by an approved sponsor “is likely to be forthcoming”. The AAT then explained in [14] why it was unable to make a finding in Mr Haq’s favour on this issue, with reference to all the uncertainties which it identified in [14] of its reasons for decision.

56    Finally, there was no lack of logic in the AAT relying on the fact that the Haq family had been on notice since 22 July 2015 that they should provide to the AAT all the material on which they intended to rely, in circumstances where the issue of a different employer had only arisen in the past few months leading up to the AAT’s hearing on 30 September 2016. I repeat what is said in [48] above.

Conclusion

57    For these reasons, I consider that the appeal should be allowed. The FCCA’s orders dated 12 June 2018 should be set aside. In lieu thereof, should will be ordered that the originating application dated 1 November 2016 be dismissed. The respondents should pay the appellant’s costs of the proceeding below, fixed in the amount of $5,500. They should also pay the appellant’s costs of the appeal, as agreed or assessed.

Associate:

Dated:    31 January 2019

REASONS FOR JUDGMENT

GLEESON J:

58    I have had the benefit of reading the reasons of each of Griffiths J and Colvin J in draft form. Generally, I respectfully agree with the orders proposed by Griffiths J and his Honour’s reasons. I add the following reasons.

59    This is not a case in which the result is “so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”: cf. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [83] per Nettle and Gordon JJ. However, it is a good illustration of the proverb “a stitch in time saves nine”: if Mr Haq had been permitted the four weeks indulgence he sought in September 2016, the current litigation could well have been avoided. The Tribunal provided reasons for its decision not to delay the making of a final decision. The Tribunal set out various matters that were relevant to that question and then concluded at para 14 of its decision record that it was not “appropriate, in the circumstances of this case, to postpone making its decision”. Although the reasons could have been expressed more clearly, in essence, the Tribunal’s justification for its decision was that it was not satisfied that the circumstances warranted it acceding to Mr Haq’s request to postpone the decision. The particular circumstances, identified by the Tribunal immediately before it reached that conclusion were:

(1)    the uncertainty as to whether Mr Haq could place himself in a position to satisfy the requirements for the visa; and

(2)    the Tribunal’s conclusion that Mr Haq had been afforded “sufficient time to obtain evidence of lodgement of a nomination application by the Red Steer to justify his request for a delay”.

60    In my view, the first of these matters provided an adequate justification for the Tribunal’s decision because it entailed the corollary that there was no particular reason to think that a postponement of the decision would enable Mr Haq to satisfy the requirements for the visa.

61    The second matter is consistent with the Tribunal’s description of Mr Haq’s request for an extension of time, namely, that it was made for the purpose of submitting documentation to the Tribunal “evidencing lodgement of a nomination application by a prospective lawyer” (decision record para 12). In my view, the second matter did not provide an adequate justification for the Tribunal’s decision. It was not obvious that Mr Haq could only justify his request for delay by evidence of lodgement of a nomination application. For example, if Mr Haq had provided evidence of Red Steer’s intention to lodge a nomination application, the Tribunal might reasonably have agreed to postpone its decision on that basis.

62    Where the Tribunal provided one adequate justification for its decision, in my view, the decision cannot be said to be legally unreasonable.

63    I do not consider that the Tribunal’s reasons reveal a failure to take into account the likely consequences of the Tribunal’s decision, namely, that the application for review would fail because Mr Haq lacked the necessary approved nomination and that Mr Haq would be deprived of the possible opportunity of securing a lodgement of a nomination application. At paras 7 and 8 of its decision record, the Tribunal identified the issue in the case as being whether Mr Haq met the statutory requirements for the visa, and that a relevant requirement was an approved nomination. At para 10 of its decision record, the Tribunal explicitly adverted to the fact that Mr Haq had neither an approved nomination nor any pending nomination application. Having decided not to postpone its decision, the Tribunal concluded that the application for review failed. The Tribunal was fully cognisant of the adverse consequences of its decision not to postpone. In my view, the conclusion that Mr Haq had had “sufficient time” implies consideration of the likely consequences of the decision, that is, that he would not be given more time to obtain the evidence required for a successful application.

64    I also do not infer from the Tribunal’s reasons that it failed to consider what was “fair and just” in the circumstances of the case. The Tribunal explicitly referred to its statutory objective: “providing a mechanism for review that: is accessible, fair, just…” (decision record para 13). The Tribunal also stated that it had considered “whether [Mr Haq] has had a fair opportunity to provide the relevant information or documents” (decision record para 13). In my view, a fair reading of the Tribunal’s reasons is that the conclusion that Mr Haq had been afforded “sufficient” time is a conclusion reached following the Tribunal’s consideration of whether he had had a fair opportunity.

65    It is true that the Tribunal could have afforded Mr Haq an opportunity to bring forward evidence from the prospective employer that might have advanced Mr Haq’s application for postponement of the Tribunal’s decision. However, I do not accept that the Tribunal’s failure to do so reveals legal unreasonableness. In any event, there was no evidence that Mr Haq might have been able to obtain relevant evidence.

Associate:

Dated:    31 January 2019

REASONS FOR JUDGMENT

COLVIN J:

66    Mr Haq, his wife and their son (then aged 10) sought review of a decision by a delegate of the Minister to refuse their visa applications. Mr Haq was the principal applicant for a work visa and his wife and son were secondary applicants. They sought review in the Administrative Appeals Tribunal. The appellants say that the Tribunal acted unreasonably when it refused to grant an adjournment for four weeks of the decision on their review application. The adjournment was sought by Mr Haq so he could secure sponsorship from a new employer in circumstances where he had been told recently that his current employer would not be able to nominate him.

67    As Mr Haq did not have a nomination from a sponsoring employer at the time of the hearing, the consequence of the refusal of the adjournment was that the Haq family were unable to demonstrate that Mr Haq met the requirements for a work visa. The Tribunal proceeded to affirm the decision to not grant visas to the Haq family. The Tribunal’s decision was made on 30 September 2016.

68    At the time of the Tribunal’s decision, Mr Haq had been working in Australia as an hotel manager since 2013. The Haq family had obtained visas in 2013 based upon that employment. In 2015, Mr Haq was offered a new contract by his employer. The Haq family lodged applications for new visas on the day before the expiry of their existing visas.

69    The adverse outcome in the Tribunal was self-evidently a significant one for the Haq family. It affected Mr Haq’s ability to work and perhaps whether the family could continue to live in Australia. They brought an application for review of the decision to refuse to grant the adjournment on the grounds of unreasonableness. It was successful. On 12 June 2018, the Federal Circuit Court remitted the matter to the Tribunal for determination according to law.

70    Rather than proceed to deal with the matter in the Tribunal, the Minister has now brought an appeal and the question whether it was reasonable for the Tribunal to refuse an adjournment for four weeks is to be considered by this Court more than two years after the original decision.

71    For the following reasons, the primary judge was correct as to the outcome (though for different reasons to those given by the primary judge) and the appeal should be dismissed with costs.

Relevant principles concerning review for unreasonableness

72    The present case concerns the scope of review of a decision made in the exercise of a discretionary procedural power entrusted to the Tribunal. In particular, it is concerned with review for alleged failure to conform to an implied standard of reasonableness applicable to the exercise of the power. Unreasonableness in the present context is to be distinguished from the use of unreasonableness to describe compendiously the various circumstances in which there may be jurisdictional error. It is also to be distinguished from review for unreasonableness of an otherwise within jurisdiction decision as to credibility or factual matters where findings cannot be said to be unreasonable unless they manifest extreme illogicality that takes the matter beyond instances where reasonable minds may differ. Unreasonableness as alleged here is a separate review ground that seeks to impugn an exercise of discretionary power on the basis that it exceeds the authority reposed in the decision-maker because the power is qualified by a requirement that the power be exercised reasonably. Relevantly for present purposes, the following propositions may be taken from the recent decision of the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30:

(1)    statutory discretionary powers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law (at [4], [53], [59], [80], [88], [131]);

(2)    the standard applies ‘usually’ and is subject to the possibility that a higher standard may be expressly required (at [53], [131]);

(3)    a decision which lacks an evident and intelligible justification is unreasonable (at [10], [82]);

(4)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others – the category is not limited to such instances (at [10], [59], [82], [89], [133]);

(5)    where review is sought on unreasonableness grounds the Court must not stray into evaluating for itself how it might exercise the discretion entrusted by statute to the decision maker. For that reason, the test for unreasonableness may be described as ‘necessarily stringent’ at [11] (Kiefel CJ), ‘extremely confined’ at [52] (Gageler J, adopting the language of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1), in ‘the realm of the extraordinary’ at [70] (Gageler J) or as being expressed in ‘strong terms’ at [135] (Edelman J);

(6)    on appeal in a case where review of a decision is sought on the basis that it is unreasonable in result, the Court must form its own view as to whether the decision is reasonable rather than defer to the evaluation of the primary judge (such as might be the case where a discretionary judgment is involved). The question is a legal one which admits of only one correct answer (recognising that the character of the evaluation to be undertaken may mean that reasonable minds might differ as to whether a particular decision is reviewable for unreasonableness) (at [17]-[18], [54]-[56], [85]-[87], [154]-[155]).

73    In addition, a case like the present, where the decision concerns the exercise of a procedural power to adjourn a hearing or defer a decision, may be distinguished from a case where the decision that is said to be unreasonable invites an exercise of a statutory power that is conditioned upon a state of satisfaction that is a matter of opinion or policy. In the latter instances it is harder to be satisfied that the power has been exercised unreasonably by reason of the scope of the discretion entrusted to the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [111]-[112] (Gageler J). Whereas, the identification by the court of the boundaries of reasonableness in the exercise of discretionary procedural powers such as the power of a tribunal to adjourn are less likely to involve intrusion into the field of discretion entrusted to the decision-maker because matters bearing upon the exercise of the power are familiar to a court.

74    Where review is sought on the basis of unreasonableness in the sense applicable in this case, it has been emphasised in this Court that where reasons are provided, an evaluation as to whether the decision was unreasonable should treat the reasons as the focal point for assessment: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47]. The reasons expose why the discretion was exercised in a particular way and if the reasoning provides an evident and intelligible justifiable for the decision then there is no unreasonableness. This approach accords with the emphasis upon the need to undertake the evaluation as to whether a decision fails to meet the standard of reasonableness in a manner that recognises that the exercise of the discretion is entrusted by the statute to the repository of the power. Review for unreasonableness must be confined to those cases where the repository’s decision lacks a justification of the kind required to bring it within the implied requirement that the discretion be exercised reasonably.

75    The question whether, in cases where reasons have been provided, the reasonableness of the decision may be assessed by reference to the reasons rather than the outcome does not appear to have been specifically addressed in SZVFW.

76    Kiefel CJ stated that if it is not obvious how a decision-maker has reached a decision then error in reasoning may be inferred from a result that is plainly unjustifiable and unreasonable. However, if the basis for a decision is apparent and plainly justifies the decision then there is no unreasonableness: at [14]. On such an approach, where reasons have been provided then reference to them may demonstrate that there is an evident and intelligible justification for the decision. Where the reasons do not provide a reasonable justification for the exercise of discretion then it is the outcome that is to be considered having regard to all the circumstances. However, what was not considered by the Chief Justice was whether poor or defective reasoning of itself may demonstrate legal unreasonableness where the defect is of a character that makes apparent unreasonableness in the reasoning process.

77    It may be that the reference to Kiefel CJ’s reasons as a means by which justification may be established (but not as a basis for demonstrating unreasonableness) may be deliberate. On such an approach, reference to the reasons is undertaken to ensure that the court does not disregard the actual reasoning which, if sufficient, will demonstrate reasonableness. Otherwise, the review for unreasonableness is concerned with the character of the outcome, not the character of the reasons. However, the specific case where the reasons expose why the decision was made, but do so in a way that exposes a justification that might be characterised as unreasonable was not considered. The question whether a decision of that character is still ‘reasonable’ if the outcome might be said to be within the scope of reasonable decisions that might be made by the repository of the discretionary power was not addressed.

78    Gageler J, in considering whether the decision was an unreasonable exercise of a procedural power to dismiss when a party fails to appear, set out the reasons of the Tribunal: at [66]. His Honour then considered the circumstances in which the decision had been made, but did not analyse the content of the reasons: at [67]. His Honour’s ultimate decision that there was no unreasonableness rests on the view that the course taken by the Tribunal having regard to what was before the Tribunal was not one that ‘no sensible Tribunal acting with due appreciation of its responsibilities could have taken’: at [69], [71]. However, his Honour did support the ultimate conclusion by reference to the considerations that were ‘expressly taken into account by the Tribunal’: at [70]. This appears to be an approach that is consistent with that of the Chief Justice.

79    Nettle and Gordon JJ, quoted with approval from the following passage of Gageler J in Li at [105] (quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47]):

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”.

80    Then, their Honours stated at [83]:

Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances.

81    Immediately thereafter (at [84]) their Honours emphasised the importance of considering the particular factual circumstances of each case when assessing whether there was legal unreasonableness and stated squarely: ‘Where reasons are provided, they will be a focal point for that assessment’. However, that statement must be read in the context of the final sentence of [84]: ‘It would be a rare case to find that the exercise of the discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power’. Again, the point being made is that the reasons may demonstrate why the decision is not unreasonable. However, the obverse is not stated, namely that a decision may be legally unreasonable because the reasons given for the discretionary decision are themselves defective in a way that might enable them to be described as ‘unreasonable’ (because, for example, they are illogical).

82    In evaluating whether there was unreasonableness ‘as an independent ground of judicial review’, Edelman J identified three reasons that the Tribunal gave for proceeding to hear the matter in the absence of the applicant for review by the Tribunal: at [138]. The conclusion was then reached that the decision of the Tribunal was not legally unreasonable ‘for the reasons it gave’. However, additional reasons were also identified: at [141]. The additional reasons identify aspects of the circumstances which supported the reasonableness of the Tribunal’s decision. This suggests an approach that is not confined to an evaluation as to whether the reasons demonstrated that the exercise of discretion was unreasonable, but rather is concerned with the outcome.

83    Therefore, the reasoning in SZVFW does not engage with the question whether, in a particular case, unreasonableness in reasoning may be sufficient to establish jurisdictional error even where the result might be within the class of outcomes reasonably justified by a decision-maker exercising the discretionary power. Rather, the reasoning in SZVFW emphasises that the reasons provided may demonstrate that a decision is not unreasonable and requires that there be regard to the reasons in considering whether there is a reasonable basis expressed for the decision made. If the reasons are deficient then the question is whether, in all the circumstances, the result is unreasonable.

84    In the High Court’s earlier decision in Li, French CJ explained unreasonableness review in the following way at [28]:

After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

85    His Honour’s conclusion that the decision in that case was unreasonable rested substantially upon an analysis of the process of reasoning by the Tribunal: at [31]. It was not directed towards a consideration of whether the outcome or result was reasonable. It looked to what informed the Tribunal’s decision ‘on the face of it’ to refuse the adjournment that had been sought pending the outcome of her skills assessment application. His Honour had earlier described the reasons provided by the Tribunal in the following terms at [3]:

It did not explain its decision to proceed to a determination beyond saying:

“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”.

86    Hayne, Kiefel and Bell JJ in their judgment reaching the same conclusion began their analysis with the reasons given by the Tribunal for refusing a request for an adjournment: at [80]. Their Honours considered those reasons in the context of the overall circumstances. Significantly, their Honours said that, in an appropriate case, the Tribunal when dealing with an adjournment application may decide that ‘enough is enough’, and then said ‘but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed’: at [82].

87    Gageler J at [122]-[124] reasoned in a manner that involved a consideration of the reasons that the Tribunal had given, but ultimately for the purpose of reaching a conclusion about whether the result was reasonable in all the circumstances. After stating that Ms Li sought an adjournment for the specific purpose of awaiting the outcome of a review of a skills assessment that had been undertaken, Gageler J said:

Nothing in the MRT’s reasons for decision suggests that the MRT took a different view of Ms Li’s prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.

The Minister argues that Ms Li was “entitled to expect a decision according to law, but not further indulgence in putting off the day of reckoning”. Ms Li was certainly entitled to expect a decision according to law. She was also entitled to expect a decision according to reason. She was entitled to expect the MRT to be reasonable.

No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.

88    So, the decisions in Li and SZVFW support the consideration of the reasons for the purpose of considering whether the decision was reasonable. If they demonstrate a justification for the decision that is within the bounds of reasonableness then there is no error. If the reasons are shown to be defective in the sense that they do not reveal the reasoning of the decision-maker then attention is focussed upon the outcome when determining whether there is legal unreasonableness as an independent ground of review.

89    However, as I have noted, there is a different type of case; one where it is clear from the reasons why the Tribunal has decided to exercise a discretionary power in a particular way, but those reasons are evidently an illogical, irrational or insufficient foundation for the exercise of the discretion and therefore an unreasonable justification for the exercise of the discretion. Neither Li nor SZVFW was a case of that kind.

90    Returning to the decision of this Court in Singh it was there said at [47] that there are ‘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’. After noting that it was not necessary for the purposes of the appeal in Singh to resolve the question whether those should be seen as two different kinds of review (and having referred earlier to the language used in Li that the decision in that case ‘lacked an evident and intelligible justification’), Allsop CJ, Robertson and Mortimer JJ then said:

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. … 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.

91    The reasoning in Singh exposes an important distinction. Unreasonableness in result may not encompass all those instances where unreasonableness is demonstrated by showing that the reasons as given are not a reasonable justification for the exercise of discretion. That is because it may be that the outcome is within the bounds of that which might be justified by different reasons, but the decision-maker plainly has not made the decision for defensible or logical reasons. So, where the reasons of a decision-maker exercising a statutory discretion, upon due examination, are shown to be illogical, irrational or insufficient, a different quality of unreasonableness error is demonstrated, namely an exercise of discretion for explicit reasons that provide no reasonable support for the way the discretion has been exercised. In such cases, the reasons might also be characterised as a failure to properly deliberate in the exercise of the discretion and therefore a failure to discharge the statutory task to properly consider the facts and circumstances and then make the discretionary decision required by the statute. However, what is significant in such cases is that the complaint is not that the result is unreasonable in the sense that it is outside of those outcomes that might have been justified by a reasonable decision-maker, but rather that the result was reached by a process of reasoning that was so unreasonable that it lacked the quality necessary to support the exercise of discretion that the statute required. In such a case, the reasons show that there has been no reasonable exercise of the discretion entrusted to the decision-maker.

92    In Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ, Beazley P agreeing) the view was expressed that ‘a decision on factual matters essential to the making of a finding by a decision-maker … can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect’. In doing so, his Honour identified the decision in Singh and the decision in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 as being consistent with that conclusion.

93    In Stretton, Allsop CJ (Wigney J agreeing) found that a case where on the facts the result is unreasonable or plainly unjust and a case where the decision lacks an evident and intelligible justification are both within the same concept of legal unreasonableness. The same may be said where an exercise of discretion that is required to be made reasonably is unreasonable in result or it is evident from the reasons that they do not provide an intelligible justification for the result.

94    Therefore, it is important to bear in mind that where (as in this case) the complaint is of unreasonableness demonstrated by an examination of the reasons of the Tribunal in the context of the facts and circumstances as they stood at the time, the question is whether the evident justification (being the reasons actually given) was an intelligible justification for the exercise of discretion. Put another way, the implied standard of reasonableness applies to the justification for the way the discretion is to be exercised, not just the result of the exercise of the discretion. If the way the discretion is justified has miscarried because of an unreasonableness in the assessment as to how to exercise the discretion then there is a failure to conform to the statutory standard.

95    All of which is not to say that unreasonableness is demonstrated by error in reasoning. It is well-established that it is not enough that the court may disagree with the reasoning process of the decision-maker who is the repository of a discretionary power. Rather, it must be the case that the reasoning lacks the quality of assessment that the decision-maker must make in order to justify exercising the discretion reasonably, being what the statute requires.

96    Nevertheless, in both the case where unreasonableness is demonstrated by deficient reasoning and the case where unreasonableness is demonstrated by the result, the jurisdictional error arises from the absence of any reasonable justification for the decision in all the circumstances. In one case, the result cannot be justified. In another case, the particular reasoning for the result cannot be justified. Even so, there is a particular vigilance required by the court in considering cases in the second category when observing the requirement that the court not stray into evaluating for itself how it might exercise the discretion entrusted by statute to the decision maker. Mere disagreement with the reasoning is not enough. Mere challenges to the weight afforded particular matters is not enough: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; (2017) 252 FCR 82. There must be an absence of justification in the reasons provided.

97    In the present context, the claim is advanced by reference to the reasons provided by the Tribunal. For the Minister it was accepted that reasonableness was to be assessed by reference to the reasons as the main focus. So, the question is whether the reasons expose an intelligible justification for a decision not to grant the four week adjournment sought by the Haq family. Plainly, in undertaking that inquiry it is necessary to understand the subject matter, the particular facts and circumstances that may bear upon the exercise of the discretion whether to adjourn. The court is not confined to the reasons when it comes to understanding the context in which the Tribunal made the decision. However, the court is confined to the reasons in considering whether they provide the necessary justification for the exercise of discretion.

The statutory context

98    Where the issue raised is whether a statutory discretion has been exercised in accordance with a required standard of reasonableness, there are three different reasons why the statutory context must be considered carefully.

99    First, it is necessary to ask precisely what is the nature of the discretion entrusted to the decision-maker. This will require both close attention to the specific provision and its context as well as the application of the principle that a general discretion must be exercised by reference to the scope and purpose of the Act conferring the power.

100    Second, there is a need to understand the nature of the standard of reasonableness that is to be applied in the exercise of the statutory power. Is it the general law standard of reasonableness? Does the language used require a higher standard of reasonableness? Is it within the rare case where a decision may be made that depends upon the idiosyncratic view of the repository such that the common law conception of reasonableness may not be implied?

101    Third, there is a need to consider the nature of the repository to whom the discretionary power has been entrusted. Are there legislative provisions that inform the nature and quality of decision-making that is required to attend the deliberation by the repository of the exercise of the discretionary power? Consideration of the nature of the repository of the power in the context of deciding whether a decision by the Tribunal met the requisite standard of reasonableness can be seen in SZVFW at [51]-[53] (Gageler J), [84] (Nettle and Gordon JJ) and [134]-[135] (Edelman J). In the present context, this third respect assumes some significance (see below).

The factual context

102    In 2013, Mr Haq commenced work as an hotel manager for A1 Hotel Group Pty Ltd. He was nominated for the position by A1 Hotel Group for the purposes of obtaining a work visa. The visa was obtained by Mr Haq. His wife and his son also obtained visas as secondary applicants.

103    On 30 January 2015, A1 Hotel Group nominated Mr Haq for a new visa. In May 2015, the primary visa application of Mr Haq and the secondary applications of his wife and son were refused by the Minister on the basis that A1 Hotel Group did not have an approved nomination as employer. As a result it could not sponsor Mr Haq’s visa. It appears that the nomination of A1 Hotel Group had been barred by a statutory notice.

104    A1 Hotel Group sought review of the decision to impose the bar. Mr Haq, his wife and son lodged a separate application for review of the refusal of their visa applications with the Tribunal.

105    In the above circumstances, unless the application by A1 Hotel Group was successful, the review application by the Haq family could not succeed.

106    The Haq family was represented by a migration agent on their application in the Tribunal. The Haq family were requested to provide material or arguments in support of their review application. A notification was sent to the migration agent on 10 August 2016 advising that the Tribunal was unable to make a favourable decision on the available material. Also, notice was given that the application had been listed for hearing on 30 September 2016. It requested documents on which the applicants relied to be provided by 23 September 2016.

107    On 29 September 2016, Mr Haq wrote to the Tribunal in the following terms:

I am the applicant in these proceedings. Since the Application was lodged with the Migration Review Tribunal, My the (sic) situation has changed.

The nominator who had nominated me for the position of the Hotel Manager has withdrawn the application for review which was before the Migration Review Tribunal recently. It has left me with no Sponsor/Nomination and my application in the current situation is unlikely to be successful.

I have spoken to numbers of employers and they are ready to file the nomination for me however it is taking some time to collect the documents. In the meantime, I seek the extension of the time to submit a new Nomination documents from a different Employer.

Kindly allow me some time (about 4 weeks) to submit documentations.

108    I note that the letter refers to the withdrawal of A1 Hotel Group’s application concerning its nomination having occurred ‘recently’.

109    Mr Haq was advised by telephone call that his request for an adjournment was refused by the Tribunal. He was not told the adjournment application would have to be made at the hearing the next day and he should bring material to support the adjournment application. Rather, he was told that he could either withdraw his application or attend the hearing.

110    Mr Haq, his wife and son attended the hearing.

111    At the hearing, Mr Haq asked the Tribunal to postpone its decision for four weeks because he had found a sponsor. Perhaps he framed his request in this way because he had been told the day before that the Tribunal would not adjourn the hearing. In any event, the request he made was for the decision on the review to be deferred for four weeks. Significantly, the application was for a short deferment for a specified period in proceedings that by then had been on foot for over a year and which had only been listed for hearing about seven weeks before the application.

112    The migration agent who had been acting did not appear.

113    The information as to what was said by Mr Haq in seeking the deferment and the Tribunal’s basis for the decision not to accede to his request can be discerned from the reasons of the Tribunal.

The Tribunal’s reasons concerning the application for an adjournment

114    The Tribunal first made factual findings as to the circumstances in which the Haq family asked the Tribunal to defer its review decision. They were expressed as follows:

At the hearing, Mr Haq told the Tribunal that A1 Hotel Group had withdrawn its application before the Tribunal for review of the Department’s decision not to approve its sponsorship application, there was no subsequent approved nomination in relation to him and nor was there any pending nomination application with the Department. In a letter lodged with the Tribunal the day before the hearing, Mr Haq requested the Tribunal postpone making its decision on his visa application for 4 weeks because he has found a new sponsor.

Mr Haq told the Tribunal that he was informed by A1 Hotel Group a “few months ago” that it was not going to pursue a nomination of the position currently occupied by him. He was later advised it has withdrawn its review application with the Tribunal (in respect of the Department’s refusal of the company’s most recent sponsorship application). Mr Haq said he could “not remember exactly” when he was told this by A1 Hotel Group. As a result, Mr Haq said it was a few months ago that he began looking for alternative sponsors. He reiterated his request for an extension of time in which to submit documentation to the Tribunal evidencing lodgement of a nomination application by a prospective employer.

Mr Haq told the Tribunal the owner of the Red Steer Hotel in Wagga Wagga (the Red Steer) is already an approved sponsor and is “thinking about” offering him employment in the role of Hotel Manager. This discussion occurred “a few weeks ago” after Mr Haq saw the job advertised on Gumtree. However, Mr Haq said he does not know the full name of the man who owns the Red Steer and confirmed that he had not yet received a written offer of employment from him. Furthermore, he said his current employer has not given him a written reference to provide to any prospective employers and “to my knowledge” the owner of the Red Steer has not yet called his current employer, Al Hotel Group, for a reference check. Mr Haq acknowledged to the Tribunal that, in circumstances where he has known for some months that his current employer would not be pursuing a new nomination, a prospective employer has not yet made any reference check, he has not yet received a letter of offer of employment from that prospective employer and no new nomination application had been lodged, it was uncertain when - and even if- he would become the subject of an approved nomination. His prospective sponsor, the Red Steer, is still “thinking about” offering him employment.

115    The Tribunal then considered the nature of the power to be exercised and its statutory context.

The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975. In this case, the Tribunal considered whether it should adjourn the review to allow Mr Haq additional time in which to provide further evidence to support his review application. There is no obligation on the Tribunal to delay its decision making, merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion: Huo v MIMA [2002] FCA 617; Manna v MIMC [2012] FMCA 28. This can apply, in certain circumstances, even where the Tribunal is considering a Subclass 457 visa refusal and a nomination application lodged by an approved sponsor is pending before the Department: Chen v MIBP [2016] FCCA 2351. In this regard, the Tribunal considered: whether, in the circumstances of this case, evidence that Mr Haq meets cl.457.223(4)(a) of Schedule 2 of the Regulations by having an approved nomination made by an approved sponsor is likely to be forthcoming: whether he has had a fair opportunity to provide the relevant information or documentation; any previous adjournment requests; and, the significance of the information or documents to him.

116    It is to be noted that the final sentence set out above lists a number of matters that the Tribunal said that it had considered. In the list there is no reference to two matters of particular significance. First, there was no identification of the likely consequence if the adjournment (or deferment of the decision on the review application) was refused. Without an express consideration of the likely consequence of a refusal of the request for a delay of four weeks, the other considerations fall to be evaluated in a bureaucratic way divorced from an evaluation as to whether the consequence will be fair and just. Second, there is no consideration of the significance of the fact that the Haq family were advancing the request for an additional four weeks on their own behalf without the assistance of a migration agent and without any suggestion that they had been told that they would need some form of independent verification in order to be able to make the request.

117    The Tribunal then provided its reasons for refusing to delay its decision. They were as follows:

In its acknowledgement letter of 22 July 2015, the Tribunal invited the applicants to provide material or written arguments in support of their review applications. Further, in its written invitation of 10 August 2016 to attend the hearing, the Tribunal noted it had been unable to make a favourable decision on material before it and invited the applicants to provide any additional documents or information they wish to rely on during the hearing. No additional information or documentation was provided, apart from Mr Haq’s request for an adjournment received the day before the hearing. It is clear to the Tribunal that, based on Mr Haq’s oral evidence, it is uncertain not only if (and when) he will be offered employment with the Red Steer but also if (and when) a nomination application will be lodged with the Department and, finally, if (and when) he will become the subject of an approved business nomination. The Tribunal also notes the absence of any statement or oral evidence from a representative of the Red Steer. Having regard to all of the circumstances of this case, the Tribunal considers that Mr Haq has had sufficient time to obtain evidence of lodgement of a nomination application by the Red Steer to justify his request for a delay by the Tribunal in its decision as to whether he meets cl.457.223(4)(a) of Schedule 2 of the Regulations. The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

Based on the evidence provided, the Tribunal is not satisfied that Mr Haq is, at the time of decision, the subject of an approved business nomination that has not ceased, or that there is an approved nomination of an occupation in relation to him that has not ceased. Accordingly, the Tribunal finds that Mr Haq does not satisfy cl.457.223(4)(a) of Schedule 2 to the Regulations.

118    The striking feature of these reasons is the failure to frame the consideration whether to grant the request for an adjournment by reference to what would be fair and just given the consequence if an adjournment was not granted. It had been frankly conceded by Mr Haq in his letter that if there was no adjournment then the application would be refused. Fundamental to the consideration of the request for an additional four weeks was a consideration of the consequences if the request was declined and whether it was fair and just for that consequence to occur. Indeed, matters of fairness and justice do not really feature in the reasons at all. Rather they focus on only two considerations: (a) a view that the Haq family had already been afforded sufficient time to put on the material on which they relied; and (b) an assessment that it was uncertain if and when the information concerning a new sponsoring employer might be obtained. In order for the Tribunal’s approach to the matter to meet the standard of reasonableness in the exercise of the discretion entrusted for the purposes of conducting an independent statutory review, these considerations needed to be viewed through the lens of whether it was fair and just given the admitted consequence of dismissal of the review application that would be visited upon the Haq family if the additional time was not afforded.

119    No doubt, as was submitted by the Minister, the Tribunal was aware of that consequence even though it did not advert to it specifically. In its reasons, after stating why the adjournment was not to be granted the Tribunal immediately proceeded to dismiss the application by reason that Mr Haq did not have an approved business nomination. In those circumstances, the failure in the reasons to weigh that consequence when considering whether to grant the adjournment is stark.

120    In SZVFW, the Chief Justice described the discretionary procedural power (in that case a power to dismiss the case when there was no attendance at a hearing by the applicant for review) as conferring upon the decision-maker the scope ‘to give effect to the power according to his or her view of the justice of the case, without interference by the courts’: at [12]. Then, ‘it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case’: at [13].

121    In Li the High Court paid close attention to a statutory provision with some equivalence to s 353 of the Migration Act 1958 (Cth), which applied in this case. Section 353 provides that the Tribunal (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. The aspirational or exhortatory terms of s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) do not operate to enable the Tribunal to put to one side the statutory requirement to act according to the substantial justice and merits of the case. In any event, they provide for the Tribunal to offer a mechanism for review that is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter. These objectives may be competing and must be balanced. However, the requirements that the review be fair and just are not to be disregarded.

122    In upholding the appeal by Ms Li, the plurality focussed upon the failure by the Tribunal to engage with the question of what was fair and just when considering the application by Ms Li for an adjournment. At [80] the matter was put in the following way:

The decision to refuse the adjournment request was explained by the Tribunal on the bases that (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another … It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.

123    Section 360 also applies in this case. It is the provision that requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues.

124    In considering whether the reasoning process of the Tribunal was reasonable, there must also be regard to the Tribunal as a repository of power. The statute entrusts the review process (and the adjournment power) to an independent statutory tribunal. In addition to the matters expressed in s 2A of the AAT Act referred to by the Tribunal, there are other provisions that inform the nature of reasonable decision-making that might be expected of the Tribunal in exercising discretionary powers such as that conferred by s 363(1)(b) of the Migration Act. By entrusting the decisions on review to members of the Tribunal, the legislature must have intended that the decisions to be made would have the character of decisions to be made by an independent tribunal of the kind established by the AAT Act. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. These aspects of the Tribunal as a repository of the power reinforce the expectation that it will exercise the discretions entrusted to it in a manner that is fair and just in all the circumstances.

125    For reasons I have given, the Tribunal’s reasons disclose that the discretion was not guided by such matters.

126    Further, in this case, the reasoning by the Tribunal failed to engage with the fact that Mr Haq was seeking an opportunity to be able to place before the Tribunal material to support his application. The Tribunal reasoned that it was not certain that he would be able to obtain what he needed in the form of a nomination. However, it did not act on the basis that there was little or no prospect of the nomination being obtained such that there would be no purpose in acceding to the request for a four week deferment. Rather, the Tribunal reasoned that because Mr Haq did not have any evidence from his prospective new employer to support his application then that was a reason why there should be no adjournment. Yet, the very reason he sought the additional time was to be able to obtain what was required. He applied on the basis that he had not yet secured what was needed and he was asking for four weeks to seek to secure it.

127    There is also a lack of logic in the Tribunal’s reasons to the extent that they rely upon notifications to Mr Haq that he must put on the material on which he would rely. Until a few months before the hearing, Mr Haq had been advancing his application on the basis that A1 Hotel Group was challenging the decision concerning the bar on its ability to sponsor employees. It was not until Mr Haq was told that A1 Hotel Group was not proceeding with its challenge that he knew that he needed to seek out new employment. On the evidence before the Tribunal he did so. Therefore, there was no logic in approaching the request for an adjournment on the basis that the Haq family had been given since 22 July 2015 to provide the material on which they sought to rely, namely the information about a different employer in circumstances where that was a matter that had arisen in the past few months. The finding that Mr Haq had been given sufficient time to obtain evidence of a nomination by reason of notifications that included the Tribunal’s letter of 22 July 2015 was infected by that lack of logic.

128    There was manifest unfairness in proceeding in this way particularly in circumstances in which Mr Haq, by the time of the hearing, was acting on his own behalf and as the spokesperson for his wife and son. The Tribunal had provided no explanation to him that he would need to have information presented in a particular way from his prospective employer if he was to be granted an adjournment. Basic principles of fairness and justice require a court or tribunal to explain to a litigant in person what is required rather than attribute to that person an understanding of the procedural niceties and make decisions affecting the rights of the litigant in person on that basis. In Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 at [21]-[26], the nature of the approach that is required by the Tribunal was explained by analogy to the responsibilities of a court in dealing with a litigant in person. It is an approach not evident in the Tribunal’s reasons.

129    Finally, the Tribunal’s failure to consider the adjournment request on the basis of what is fair and just is evident from it statement that ‘[t]there is no obligation on the Tribunal to delay its decision making merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion’. The question was not whether there was an obligation. The question was whether it was it was an appropriate exercise of discretion to grant additional time for that reason.

Conclusion

130    For all those reasons, even though in the circumstances the outcome of the application by the Haq family for an adjournment may have been within the scope of outcomes that may have been justified by the Tribunal as a reasonable exercise of discretion, this is a case where the reasoning by the Tribunal demonstrates that the decision was an unreasonable exercise of discretion.

131    As to whether the reasons disclosed a reasonable justification for the exercise of the discretion it is necessary to consider the nature of the power and the nature of the repository to whom it is entrusted. Consideration of those matters reveals that the reasonable exercise of the power to adjourn the review is that conferred by s 363(1)(b) and must be guided by an assessment of what is fair and just in all the circumstances.

132    The reasons show that the refusal of the adjournment in this case was unreasonable because of three matters.

133    First, the reasons disclose that the Tribunal did not evaluate or balance the necessary consequence of a refusal of the adjournment as part of the decision-making process when such an evaluation was fundamental if the exercise of the discretion was to be guided by what was fair and just. A decision informed by reasons which did not approach the matter in that way was unreasonable. It disregarded the fundamental aspect of a reasonable exercise of the discretion given that it was entrusted to the Tribunal, an independent statutory decision-maker with qualified and experienced members, as the repository of the power.

134    Second, the Tribunal reasoned that because Mr Haq did not have any evidence from his prospective new employer to support his application then that was a reason why there should be no adjournment. Yet, the adjournment was sought for the purpose of obtaining that information which Mr Haq admitted he did not yet have available. This was all the more unfair because as a litigant in person he had not been told that it would be necessary for him to put on information to support his request for an adjournment (as distinct from information to support the substance of his review application).

135    Third, it was illogical to rely upon the notifications in July 2015 in reaching a conclusion that the Haq family had been given an ample opportunity to provide what was needed. Once the decision was made Mr Haq had no basis upon which to approach prospective employers to secure sponsored employment. That remains the position. The result is that the Haq family has been deprived of the opportunity to present evidence to support their application. In that regard, the Court was informed that there have been changes to the legislation concerning sponsored employment and a new application is not open.

136    The decision of the primary judge should be upheld and the appeal dismissed with costs.

Associate:

Dated:    31 January 2019

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