FEDERAL COURT OF AUSTRALIA

Khalil v Minister for Home Affairs [2019] FCAFC 151

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the primary judge are set aside and, in their place, it is ordered that:

(a)    The application is allowed.

(b)    A writ of certiorari issue directed to the second respondent, quashing its decision made on 26 February 2018.

(c)    A writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for reinstatement of his application for review according to law.

(d)    The first respondent pay the appellant's costs of the application before the primary judge.

3.    The first respondent must pay the appellant's costs of this appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Mohamed Youssef Helmi Khalil, is a citizen of Egypt who applied for an Australian visa. His application was refused under s 501 of the Migration Act 1958 (Cth) because a delegate of the first respondent (the Minister) determined that he did not pass the character test for the purposes of that section, by reason of his criminal record.

2    Mr Khalil applied to the Administrative Appeals Tribunal for review of that decision. The Tribunal dismissed the application on 26 February 2018. Mr Khalil applied to the Federal Court of Australia for judicial review of that dismissal. The primary judge dismissed the application for judicial review, and Mr Khalil now appeals from his Honour's judgment.

3    In this court and before the primary judge Mr Khalil was represented by counsel acting pro bono. We wish to record the court's gratitude for the assistance thus provided.

Background

4    Mr Khalil's application for review arose out of a decision by the Tribunal to adjourn the hearing of the application for review, for one day only. The decision was made in the following difficult circumstances, which are largely not in dispute.

5    On 4 December 2017, notice of the decision of the Minister to refuse the visa application was communicated to Mr Khalil and he signed an acknowledgment to that effect. At all relevant times, Mr Khalil was in immigration detention on Christmas Island.

6    Mr Rodgers filed the application for review of the decision on 7 December 2017, and acted for Mr Khalil in relation to the review until the morning of the day on which the hearing of the application was listed.

7    On 10 January 2018 the Tribunal listed the matter for hearing on Monday, 19 February 2018. Early on the morning of 19 February, Mr Rodgers emailed Mr Khalil saying that he (Mr Rodgers) would not be able to attend the hearing because of a commitment in the District Court of Western Australia. Mr Rodgers also emailed the Tribunal and the solicitors for the first respondent on the same morning asking 'that the hearing be deferred' and also saying 'given the position i [sic] am in with the current trial, I would have great difficulty in assisting Mr Khalil in the near future and I apologise for this, as I have been assisting Mr Khalil on a pro bono basis given that he is on Christmas Island and as far as I know does not have the means to pay for legal representation'. Mr Khalil disputes the claim that Mr Rodgers was acting pro bono but it is not necessary to make a finding about that for the purposes of this appeal.

8    The solicitors for the Minister emailed the Tribunal very soon afterwards indicating that, to the extent that Mr Rodgers' email was a request for an adjournment of the hearing, the request was opposed. The email said that under s 500 of the Migration Act, the Tribunal was required to make any decision by 26 February 2018. Correspondence was exchanged directly between Mr Rodgers and the Minister's solicitors at around the same time, to similar effect.

9    Both Mr Khalil and the Tribunal were thus in an invidious position. Section 500(6L) of the Migration Act provides as follows:

If:

(a)    an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone; and

(c)    the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

10    The Tribunal proceeded on the basis that this 84 day time period was due to expire the following Monday, 26 February 2018. That date was 84 days after the email notification to Mr Rodgers of the delegate's decision. As will be seen, Mr Khalil now alleges that the 84 days had not started to run at all, but the Tribunal and the Minister proceeded on the basis that, at the end of 26 February 2018, the Tribunal would be taken to have affirmed the delegate's decision if it had not made a decision on the review before then. It would perhaps be artificial to say that Mr Khalil also proceeded on that basis before the Tribunal, at least once he ceased to have legal representation, but in any event he did not demur.

11    At the opening of the hearing on 19 February 2018, the Minister appeared by a solicitor but Mr Khalil, unrepresented, appeared by video link from Christmas Island. The transcript of the hearing on that day does not indicate that Mr Khalil had the assistance of an interpreter, and does not suggest that he had any difficulty understanding what was being said or making himself understood. On appeal his counsel said he has 'walking around, standard English'.

12    Mr Khalil had not received the papers for the hearing by this time. It appears that the documents that were before, or were to be put before, the Tribunal in the hearing were: what is known as the 'G documents', being the application to the Tribunal and the materials which the Minister was required to give the applicant under s 501G of the Migration Act; the Minister's statement of facts, issues and contentions; a short statutory declaration that Mr Khalil had made; and some additional material relating to Mr Khalil's criminal record which the Western Australian authorities had produced under summons. It is not clear why Mr Khalil did not have at least some of this material, since he signed a receipt for some of it on 7 December 2017, but the Minister does not now contend that Mr Khalil had the documents at the commencement of the hearing on 19 February 2018.

13    The Deputy President hearing the matter said he thought it best to stand the matter down for 24 hours. The Minister's solicitor said that with the exception of the summonsed materials, the documents had been provided to Christmas Island and that he expected that it would take half an hour for them to be printed and given to Mr Khalil. The solicitor also said that copies of the summonsed material would be sent to Mr Khalil as well, or at least such of it as would be referred to in cross-examination. The Deputy President then said:

I might just adjourn the matter until 10.30 tomorrow. Mr Khalil, there's not a lot we can - there's no point in proceeding today in - well, you haven't had the chance to look at the documents which are being sent up to Christmas Island, and the other problem that we have, of course, which you would probably understand, is that a decision in the matter has to be handed down next Monday. So we haven't got the ability to delay it for any significant period of time.

14    While Mr Khalil did not express any objection to this, a speaker identified only as Sarah, who seems to have been responsible for allocating the facilities at Christmas Island, indicated that video conference rooms were not available the following day or the Wednesday, to which the Deputy President said, 'Yes, but I can't really delay it that long because the decision has to be handed down on Monday, so I obviously need time to write the decision.' Sarah also indicated that Christmas Island had not received any of the papers at that time. The Deputy President replied, 'Okay. Well, I'm sure throughout the day we'll be able to get stuff to you or Sparke Helmore will and I'll get my associate to liaise with you in relation to what sort of technology we can put in place for tomorrow.' The Deputy President adjourned the matter to the following day.

15    The hearing resumed at 10.45 am on Tuesday, 20 February 2018. Mr Khalil appeared by telephone with the assistance of an interpreter (who was in Perth). Through the interpreter, Mr Khalil confirmed that he had received the documents that had been sent to Christmas Island. In fact, according to an affidavit of Mr Khalil affirmed on 19 July 2018, and despite the indication given on behalf of the Minister at the hearing on 19 February 2018, Mr Khalil did not receive the review documents until 4.00 pm on 19 February. The Minister's solicitor had not emailed the documents to the Tribunal until approximately 1.45 pm on that day, and a few minutes after that an officer of the Tribunal informed the solicitor that she was forwarding the documents to Sarah on Christmas Island.

16    Nobody made reference to the time of receipt at the resumed hearing, although it is possible that the Deputy President was aware of the time through the officer of the Tribunal. Mr Khalil's affidavit also says:

7.    On the same day at around 4pm, the immigration officer handed me a book of documents. I didn't know where to start and what to do. I don't understand the migration law and the tribunal process. I was under so much stress thinking about my case which was fixed for hearing the next day. I didn't understand the content of the documents and didn't know what the Tribunal would look for to decide in my favour.

8.    I didn't get any help in the detention centre and I could not reach out for help. No lawyers would agree to attend hearing at the last minute.

9.    I have not received the minister's outline argument.

10.    My current lawyer Mr G Arujunan asked me whether I have received Ministerial Direction 65 from the tribunal or the Minister's lawyer. I told him this is the first time I am hearing about it and I don't understand what the document, is [sic] even after he tried explaining to me.

11.    I relied on my lawyer 100% to represent me at the Tribunal.

12.    The next day at the hearing I again asked for an adjournment but the Tribunal refused. The hearing went on and I didn't know what points to make to persuade the Tribunal to decide in my favour.

17    After various documents were admitted into evidence, the Deputy President said:

today's application is for a review of the decision of the Minister to not grant the visa for Mr Khalil. So what my job is today or over the next - by Monday, to make a decision as to whether or not that decision should be set aside and the visa granted, or the decision of the Minister be affirmed.

18    Shortly after that, the following exchange occurred:

INTERPRETER: He said, I just received the documents last night - yesterday, sorry. I just received the documents yesterday, so I don't have the time to prepare for it, to make my defence.

DEPUTY PRESIDENT: Unfortunately, because of the legislation a decision has to be handed down by Monday, so we have to proceed with the hearing today and try and make the best of an unhappy situation. As I say, his lawyer who was representing him should have done a lot of this, but he hasn't, but that's out of our control.

INTERPRETER: He said, but this is unfair because he got all the documents - the lawyer got all the documents against me but I don't have any document - - -

DEPUTY PRESIDENT: Well, he's got all the documents now. There's no [sic] a lot we can do about it. So we're going to proceed today and Mr Khalil will have to, you know, make the best of what is probably not an ideal situation but where we're at, we can't do anything about that now. If a decision isn't handed down by Monday, Mr - the application will be automatically dismissed.

INTERPRETER: He said, I have no problem but I need a copy of this interview to be sent to me.

DEPUTY PRESIDENT: The hearing, the transcript, or - - -

INTERPRETER: This interview, he said. He said, with your permission, any sort of evidence of this hearing.

DEPUTY PRESIDENT: We will be - I'll be delivering a written decision which will set out all the facts and the considerations, so he will get a written decision, and that has to be by next Monday.

INTERPRETER: Thank you very much.

19    Mr Khalil was then sworn in and the hearing proceeded. At the end of the hearing the following exchange between the Deputy President and the solicitor for the Minister occurred:

DEPUTY PRESIDENT: Thank you, Mr Khalil. I'll be handing down a decision before Monday because - I think it's Monday, isn't it, Mr Burgess?

MR BURGESS: Yes, the 84th day is Monday.

DEPUTY PRESIDENT: 84th day. So the decision has to be handed down by Monday.

20    On Monday 26 February 2018 the Tribunal handed down its decision affirming the delegate's decision, with written reasons. The reasons contain a paragraph that refers to the adjournment but does not mention the 84 day period. The reasons are not otherwise relevant to this appeal.

The primary judge's reasons and the issues on appeal

21    Before the primary judge the matter resolved to three contentions, only two of which are pressed on appeal. The first was that, even on the assumption that the 84 day period was about to run out, the Tribunal could not reasonably justify proceeding the day after Mr Khalil ceased to be legally represented. The second was that the assumption was incorrect, because the notification to Mr Khalil of the decision refusing his visa application was not 'in accordance with' s 501G(1), so s 500(6L)(c) was not engaged.

22    The primary judge accepted that it would have been extremely difficult for a lay person like Mr Khalil to master the materials at short notice, even if he did have some English and some familiarity with the materials and the matters that might be advanced on his behalf. His Honour acknowledged the obvious difficulties that Mr Khalil faced and found that, in the absence of countervailing considerations, in order to give him a fair opportunity to present his case, the Tribunal should have granted a short adjournment. However his Honour found that it had not been demonstrated that there would have been any meaningful difference had Mr Khalil been given a day or two more to prepare his case.

23    That was especially so in light of s 500(6H) of the Migration Act, which prohibited the Tribunal from having regard to any information presented orally in support of Mr Khalil's case unless the information was set out in a written statement given to the Minister at least two business days before the hearing. His Honour considered that this meant that there was little that could be raised in an affirmative way by Mr Khalil because, apart from his short statutory declaration, no such written statement had been given. If the decision was to be delivered on Monday 26 February 2018, and 24 and 25 February being the weekend, 23 February would have been needed to prepare the decision, so the hearing would have needed to be held on 22 February. Working back two business days from that meant, at the latest, that Mr Khalil would have had to give any written statement by the morning of 20 February 2018. Also, these calculations made no adjustment for other commitments of the Deputy President.

24    In the primary judge's view, in those circumstances it could not be said that the decision to proceed on 20 February 2018 deprived Mr Khalil of a reasonable opportunity to present his case. Any prejudice to Mr Khalil was caused by Mr Rodgers, not any failure on the part of the Tribunal. His Honour also found that it had not been shown that the failure to allow an additional day or two deprived Mr Khalil of the possibility of a successful outcome. In his Honour's view, Mr Khalil had not been deprived of procedural fairness, nor could it be said that the Tribunal was in breach of the implied standard of reasonableness that conditioned the exercise of its powers.

25    Mr Khalil challenges these conclusions by way of the following grounds of appeal, which assert that the primary judge:

1.    Erred in not finding that the [Tribunal] had denied the Appellant procedural fairness in not allocating an available 'day or two more' for the Appellant to assume conduct of his own review following his lawyer's eleventh-hour abandonment, because it would not have made any 'meaningful difference' to the outcome, or had not been demonstrated that it would be so, alternatively erred in not finding that the Tribunal's refusal of an adjournment was not unreasonable [sic 'was unreasonable'].

2.    Erred in its [sic] application or understanding of the 'materiality' requirement, in that the Tribunal was not otherwise required to affirm the decision under review and there was a possibility of a different outcome.

26    As we have mentioned, the second contention at trial, that the 84 days had not started to run, was put on the ground that s 500(6L) of the Migration Act requires the period to be counted from the day on which the applicant was notified of the decision under review 'in accordance with subsection 501G(1)'. That subsection is as follows:

If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person; or

(ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

(f)    if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i)    states that the decision can be reviewed by the Tribunal; and

(ii)    states the time in which the application for review may be made; and

(iii)    states who can apply to have the decision reviewed; and

(iv)    states where the application for review can be made; and

(v)    in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)    sets out such additional information (if any) as is prescribed.

27    Mr Khalil submitted that in the case of the notification given to him, s 501G(1)(f)(iv) was not satisfied, because the notification did not state where the application for review could be made.

28    The notification included a document headed 'HOW TO APPLY FOR MERITS REVIEW BY THE ADMINISTRATIVE APPEALS TRIBUNAL AND THE EFFECT OF SUBSECTIONS 500(6A) TO (6L)' (the How to Apply Document). Relevantly, under the heading 'HOW TO APPLY FOR REVIEW' the document said:

To apply to the Administrative Appeals Tribunal (AAT) for a review of the decision, you can either:

•    apply online

•    write to any of the AAT offices listed below and explain the details of the decision and why you are seeking a review, or

•    complete an application form obtainable from any of the AAT offices listed below which outlines all the information required. The completed form can be lodged in person at or sent to any of the AAT offices listed below.

…

More information about fees or other aspects of the application process can be obtained from any of the AAT offices listed below.

http://www.aat.gov.au/AAT/media/AAT/files/MRD%20documents/Factsheets/M10MigrationReviewProcess.pdf

29    The document which was brought up when that link was clicked is no longer available and was not in evidence. Nevertheless, his Honour inferred that the document contained a list of physical addresses of Tribunal offices where applications could be made, and this finding is not challenged. However, despite the references to 'AAT offices listed below', there were no such addresses in the How to Apply Document itself. As far as applying online goes, the How to Apply Document contained an email address which appears to have been for the Migration and Refugee Division of the Tribunal, and also said under the heading 'AAT website' that 'AAT forms are available on the website at www.aat.gov.au'. However these addresses were on the second page of the How to Apply Document under the heading 'ADMINISTRATIVE APPEALS TRIBUNAL (AAT) OFFICES OTHER RELEVANT SERVICES' and nowhere is it said that an applicant can apply at that web address or via the email address. Once again, despite the heading of the page, there is no list of addresses of Tribunal offices on the page.

30    The contention that this meant that the 84 days had not started to run appears in the following ground of appeal (there was also a ground of appeal 3 but it was abandoned):

4.    Erred in finding that the Tribunal could not have known, or could not have been expected to know, whether or not paragraph 501G(1)(f) of the Migration Act 1958 (Cth) had been engaged, such that the Tribunal incorrectly confined itself to a decision within 84 days purportedly under subsection 500(6L), and in any event erred in the latent assumption that any lack of knowledge of non-fulfilment of 501G(1)(f) by the Tribunal was conclusive against a finding of jurisdictional error.

Whether the Tribunal denied the appellant procedural fairness or acted unreasonably

31    Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) requires the Tribunal to ensure that every party to a proceeding before it is given a reasonable opportunity to present his or her case. That requirement is also at the heart of the obligation to afford natural justice which the law would in any event imply: Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (Deane J, Fisher J agreeing). A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ, citing Sullivan at 343).

32    What is reasonable will depend upon the circumstances of the case: Re Australian Railways Union; Ex parte Public Transport Commission (1993) 117 ALR 17 at 24. However, the duty of the Tribunal was to afford the applicant a reasonable opportunity to present his case, not the best possible opportunity that the Tribunal may have been capable of accommodating, or an adjournment to 'a date as late as humanly possible': Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [25], [30] (Edmonds J), affirmed in Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 (Flick, Nicholas and Robertson JJ). As that case illustrates, the question of whether or not an applicant has been given a reasonable opportunity to be heard depends on the course of the proceedings as a whole: see especially [2012] FCA 705 at [24], quoted with approval in [2012] FCAFC 123 at [11].

33    The withdrawal of legal representation shortly before a hearing does not mean that a court will always grant an adjournment in the proper exercise of its discretion. Each case depends on the individual circumstances: Jarrett v Westpac Banking Corporation [1999] FCA 425 at [87] (Mansfield J). While Jarrett concerned adjournment of court proceedings, there is no reason to suppose that an administrative tribunal is more likely to be required to grant an adjournment in those circumstances.

34    Apart from procedural fairness, the law is also clear that a refusal to grant an adjournment may be set aside where it is shown to be legally unreasonable in the sense that the refusal was without 'an evident and intelligible justification': Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76], [82], [85] (Hayne, Kiefel and Bell JJ).

35    It is not necessary for Mr Khalil to establish that adjourning for only 24 hours was irrational or bizarre, or was a decision that no reasonable decision maker could have made: Li at [68] (Hayne, Kiefel and Bell JJ). Nevertheless, the standard is a stringent one: Li at [113] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [11] (Kiefel CJ), [52], [70] (Gageler J), [135] (Edelman J). In TTY167 v Republic of Nauru [2018] HCA 61; (2018) 362 ALR 246 at [24] the High Court observed that the standard is particularly demanding in light of concerns, including informality and the need for efficiency, that underlay hearings of the Refugee Status Review Tribunal of Nauru. That observation is apposite to the Administrative Appeals Tribunal and the latitude it has to decide whether to adjourn a hearing. The task is not for this court to determine what it thinks was reasonable in the circumstances and thereby conclude that any other view displays error: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12] (Allsop CJ). It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power: SZVFW at [84].

36    It is clear that Mr Khalil was placed in a very difficult position through no fault of his own. There was no suggestion that the Minister would have been prejudiced by an adjournment longer than the 24 hours that was given. It is hard to see what Mr Khalil could have accomplished in that short period of time, especially in detention on Christmas Island, and in circumstances when he did not have any of the relevant documents at the time the adjournment was granted. If the assumed effect of s 500(6L) of the Migration Act were to be disregarded, it is clear that it would have been unreasonable for the Tribunal to have granted such a short adjournment.

37    However, in our view it is not necessary to engage with the difficult questions of evaluation that are raised by the above principles, as there is a more straightforward path of reasoning which leads to a finding of jurisdictional error here. The argument was not put to the primary judge. But when it was raised at the hearing of the appeal, the Minister did not object to it being considered and sought, and was granted, the opportunity to file supplementary written submissions.

38    In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] the court pointed out that legal unreasonableness can be employed in two different contexts. One focusses on the outcome of the decision and seeks to characterise it as unreasonable, even though made within 'an area of decisional freedom' conferred by the statute. But legal unreasonableness can also arise where a more specific jurisdictional error has been identified: see Li at [28] (French CJ), [72] (Hayne, Kiefel and Bell JJ). For the following reasons, we consider that the Tribunal fell into an error of that kind here.

39    It is plain from the extracts from the transcript of the hearing quoted above that the Tribunal was proceeding on the basis that not only did it have to deliver its decision on the review by Monday 26 February 2018, but it also needed to provide written reasons by that time. That is particularly clear from the passage from the transcript of the hearing on 20 February 2018 in which the Deputy President said that he would be 'delivering a written decision which will set out all the facts and the considerations, so he will get a written decision, and that has to be by next Monday'. The Tribunal equated the requirement that it make a decision by the following Monday with the requirement that it produce written reasons for the decision.

40    The Tribunal was incorrect to proceed on that basis. The provisions relevant to delivery of reasons in s 43 of the AAT Act are as follows:

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A)    Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

…

When Tribunal's decision comes into operation

(5A)    Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

(5B)    The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

…

41    The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.

42    In his written submissions filed after the appeal hearing in this case, the Minister conceded that the decision in BTR reflects the correct interpretation of s 43(2) of the AAT Act 'as referred to in s 500(6C) [sic 500(6L)] of the Migration Act'. It may be that what is a reasonable time for delivering reasons in the present context is influenced by the 35 day time limit for applications for judicial review of the Tribunal's decision that is found in s 477A(1) of the Migration Act. But it is not necessary to determine that for present purposes; it is clear that the Tribunal misdirected itself as to the law when it proceeded on the basis that it had to both deliver a decision and produce written reasons by 26 February 2018.

43    The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: Migration Act s 476A(2). Not every error of law is a jurisdictional error: see the recent analysis in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [33]-[40]. In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [24] (Kiefel CJ, Gageler and Keane JJ). 'The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?': Hossain at [67] (Edelman J, Nettle J agreeing).

44    Here, the immediate source of the power that the Tribunal exercised in adjourning the hearing on 19 February 2018 was s 40(1)(c) of the AAT Act, which provides that for the purpose of reviewing a decision, the Tribunal may adjourn the proceeding from time to time. However it is not the decision made in exercise of that power which Mr Khalil challenged, it was the decision that it made on 26 February 2019 under s 43(1)(a) to affirm the delegate's decision. That paragraph of the legislation provides, in effect, that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing either to affirm, vary or set aside the decision under review.

45    As Edelman J indicated in Hossain, the AAT Act does not explicitly set the jurisdictional boundaries of either the power to adjourn or the power of review. Section 33 stipulates that in a proceeding before the Tribunal, its procedure is within its discretion, but that is expressly made subject to the Act and the regulations and to any other enactment. The same provision also requires that the proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. Even allowing for informality and a relative lack of technicality, that cannot be construed as indicating that the Tribunal is free to err at large in relation to the procedures that it follows on review.

46    It is also to be observed that the numerous provisions of the Act that govern the procedures of the tribunal are quite prescriptive. We have already referred to the requirement in s 39 that the Tribunal give every party to a proceeding a reasonable opportunity to present his or her case. Other examples include: an express power granted to allow a person to participate in hearings by telephone or by means of other communications equipment (s 33A(1)); express limitations on when the Tribunal may dispense with a hearing (s 34J); the lengthy and detailed provisions setting out the various ways in which the Tribunal may complete a review (s 42A-s 43(1)); and the detailed provisions governing publication of decisions and the provision of reasons (s 43(2)-s 43(5)).

47    These provisions, in our view, indicate that the legislation does not empower the Tribunal to proceed on the basis of a misconception of the nature of its task as fundamental as that which infected the Tribunal's conduct of the hearing and, through that, its ultimate decision in this case. While past decisions, even those of the High Court, are not to be treated as laying down rigid categories or definitions of jurisdictional error, we are fortified in our conclusion by the fact that the error is of a kind represented by (at least) one of the examples given in Craig v State of South Australia (1995) 184 CLR 163 at 177-178, namely misconstruing the statute and thereby misconceiving the nature of the function which it is performing.

48    What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons. It might be argued that the error was only one as to the timing of delivery of reasons, not the nature of the task. But in our view, on the proper construction of the AAT Act, and in the context of the serious constraints imposed on the review by the combination of that 84 day limitation and Mr Rodgers' abandonment of Mr Khalil on the morning of the hearing, that was an error of such gravity (see Hossain at [25]) that it should be characterised as jurisdictional. No contrary intent appears in the AAT Act (or the Migration Act), and in the absence of such intent 'an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law': Craig at 179.

49    However, the Act is not to be interpreted to deny legal force to the decision unless the resulting breach of the limitations on the Tribunal's powers was material to the decision: Hossain at [29]-[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [44] (Bell, Gageler and Keane JJ, but see Nettle and Gordon JJ dissenting on this point). A breach is material to a decision only if compliance could realistically have resulted in a different decision. That is an ordinary question of fact on which the applicant for review bears the onus of proof, and which may be determined from inferences drawn from the evidence: SZMTA at [45]-[46].

50    In ascertaining the materiality of the error here, it is necessary once more to keep in mind the distinction between the decision to adjourn and the decision that is challenged, namely the outcome of the review. It is clear from the excerpts from the hearing of the Tribunal quoted above that the Tribunal's error was material to the former decision. Was it also material to the latter? That is, could the decision made under s 43 of the AAT Act have been different if the Tribunal had appreciated that it did not need to deliver written reasons for the decision until a reasonable time after Monday, 26 February 2018?

51    In our view, it could have been. Certainly, the Tribunal had a duty to deliver a considered decision on 26 February 2018. If the Deputy President had appreciated the true distinction between his obligation to make a decision and his obligation to give reasons, he could not have been fairly criticised if he had declined to hold the hearing on that day, so as to reserve sufficient time for consideration over the weekend. But it can be concluded on the basis of the common experience of courts and tribunals that writing out reasons in publishable form takes much longer than the mental process of identifying the correct decision and what the reasons for it will be. In fact, on 26 February 2018 the Tribunal delivered detailed written reasons some 25 pages long. In our view it can be inferred from the concerns that the Deputy President did express about the time it was going to take to produce his reasons that if he had been able to write reasons after 26 February, he would have adjourned the hearing at least until Thursday 22 February, and quite possibly to Friday 23 February.

52    It is true that, even then, Mr Khalil could not have presented any additional information orally at the hearing unless he had set it out in a written statement given to the Minister at least two business days before the hearing (Migration Act s 500(6H)), and that he could not have relied on any further document in support of his case unless he gave a copy to the Minister at least two business days before the hearing (s 500(6H)). But those restrictions did not prevent him from making (at least) oral submissions based on the material that was before the Tribunal or, perhaps more to the point in the circumstances, having oral submissions made on his behalf: Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [102]-[103]. While he would undoubtedly have faced difficulties in procuring an alternative legal representative as quickly as he needed to, and had been unable to do so within the 24 hours allocated to him, the possibility of securing such representation with a little extra time was not an unrealistic one. Any such representative would have to master a volume of material running to some 370 pages which, while not an insubstantial task, was eminently achievable for a hearing of this nature.

53    In our view the possibility that the outcome would have been different if Mr Khalil had secured that representation was a real one. His offending, while serious and undoubtedly of an extent which meant he did not pass the character test, was not at the extreme end of the scale. There was material in the G documents which could have formed the basis for submissions about matters such as the interests of his minor children and his wife, and counselling and rehabilitation programs he had completed. Yet in the circumstances, the hearing on 20 February 2018 consisted of little more than cross-examination by the solicitor acting for the Minister and a brief statement by Mr Khalil at the end of the hearing, consisting of emotively expressed generalities. Consistently with this, the Tribunal's reasons placed a great deal of emphasis on the seriousness of the offending and little emphasis on the interests of the children and other factors we have mentioned.

54    This is not to say that the Tribunal's decision on the merits was incorrect - that is not the question for present purposes. It is enough to say that a moderately skilled advocate would have been able to make significantly more of the material that Mr Khalil did in the circumstances. Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 is an example of a case where the manner in which a hearing is conducted on behalf of an applicant can affect relatively intangible factors such as the impressions formed by a decision maker and the coverage, detail and emphasis of submissions, in such a way as to potentially make a difference to the outcome of a hearing, so as to merit judicial review: see especially the discussion at [38]-[44] (Kiefel, Bell and Keane JJ) and [66] (Gageler and Gordon JJ).

55    In all the circumstances, we consider that if the Tribunal had not misdirected itself on the subject of when it was required to produce reasons for its decision, the outcome for Mr Khalil could, realistically, have been different. Jurisdictional error is established and grounds 1 and 2 should be upheld.

Whether the 84 days had commenced to run

56    Given the conclusion we have expressed it is not strictly necessary to deal with ground 4. But we will address it briefly, in deference to the arguments of counsel.

57    Mr Khalil contends that the material that accompanied the notification of the delegate's decision which was provided to him on 4 and 7 December 2017 was deficient because it did not state where the application for review of that decision could be made, and therefore did not comply with s 501G(1)(f)(iv) of the Migration Act. He goes on to contend that this means that s 500(6L)(c) was not engaged, because he was not notified of the decision in accordance with s 501G(1).

58    There is considerable support for both of those contentions in decisions of single judges of this court dealing with these or comparable provisions, namely: Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469 (Allsop J, as he then was); Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 (Gray J); and Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494 at [26]-[31] (Lindgren J).

59    In the present case, the primary judge expressly assumed, without deciding, that there was merit in these contentions. In light of that, it is preferable not to express any concluded view on the matter in this appeal. But even making that assumption, his Honour declined to find jurisdictional error because, as we have indicated, no submission was advanced to the Tribunal that the time had not started to run, so there was no unfairness in the Tribunal approaching the adjournment question on the basis it had commenced to run.

60    In this appeal, Mr Khalil's counsel sought to overcome this by submitting that s 500(6L) of the Migration Act sets the temporal limits of the Tribunal's authority to decide, that being a question to which the Tribunal was obliged to turn its mind, regardless of whether a party raised it. But whether or not that is so, we do not consider it would have made any difference to the Tribunal's approach to the matter. In circumstances where the Minister was expressly referring to and relying on the expiry of the 84 day period, and where the question of whether that period had started to run was a contestable one, any prudent tribunal would have proceeded on the basis that the period was going to expire on 26 February 2018. The risks inherent in giving a decision after that date are obvious.

61    Therefore, whether or not the Tribunal was in error in failing to determine whether the 84 day period had started to run, we do not consider that it was in error in proceeding on the assumption that it had. Even if the Tribunal had looked into the matter, that would not have made any difference to its approach to the adjournment of the hearing. We would not uphold ground 4.

Effect of quashing the Tribunal's decision

62    In the course of the appeal the court raised the question of whether, if the decision that the Tribunal made on 26 February 2018 were quashed, the effect of s 500(6L) of the Migration Act will be that the Tribunal will be taken to have affirmed the delegate's decision anyway, so that there would be no utility in granting judicial review.

63    A Full Court constituted by the same judges as have heard the present appeal considered the construction of s 500(6L) in that regard in Somba v Minister for Home Affairs [2019] FCAFC 150 and the reasons for the decision have been published on the same day as these reasons. The issues are not precisely the same. In Somba the question was whether a decision to dismiss an application under s 42A of the AAT Act for default in appearance meant that s 500(6L)(c) was no longer engaged, even though the application for review was subsequently reinstated under s 42A(9). In this appeal, the question is whether the Tribunal's decision (made under s 43 of the AAT Act) means that s 500(6L)(c) is no longer engaged, even after the decision is quashed by the issue of a writ of certiorari.

64    In this appeal both the appellant and the Minister submitted that s 500(6L) would have no further application if the court were to quash the Tribunal's decision. It therefore suffices to say that that submission is consistent with the construction of s 500(6L) set out in Somba, and with the approach that Finkelstein J took in Hall v Minister for Immigration & Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 at [30]-[31]. The quashing of the Tribunal's decision here will not result in s 500(6L) being engaged or re-engaged, and no deemed affirmation of the delegate's decision will arise under that provision.

Orders

65    The appeal should be allowed.

66    The orders of the primary judge should be set aside and, in their place, it should be ordered that:

(a)    The application is allowed.

(b)    A writ of certiorari issue directed to the second respondent, quashing its decision made on 26 February 2018.

(c)    A writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for reinstatement of his application for review according to law.

(d)    The first respondent pay the appellant's costs of the application before the primary judge.

67    The first respondent should also be ordered to pay the appellant's costs of this appeal.

Associate:

Dated:    30 August 2019