FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court dated 13 February 2014 are set aside.

3.    In lieu of the orders, there be an order that the decision of the Migration Review Tribunal dated 7 March 2013 be set aside.

4.    The Tribunal is required to hear and determine the appellant’s application for review according to law.

5.    On or before 4.00pm on Thursday 4 September 2014, the parties file agreed proposed orders as to costs.

6.    If no agreement can be reached pursuant to paragraph 5, on or before 4.00pm on Thursday 11 September 2014, the parties file and serve written submissions on the question of costs, limited to two pages.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        The appellants are husband and wife, and are nationals of India. They first entered Australia on 14 April 2008, under a Student (Temporary) (Class TU) (Subclass 573) visa issued to the first appellant. On 12 March 2010 (and prior to the expiry of the first student visa) the first appellant again applied for a student visa, this time Subclass 572. The application was refused and the appellants unsuccessfully sought review at the Migration Review Tribunal and then in the Federal Circuit Court.

2        The first appellant was unrepresented before the Federal Circuit Court and throughout the conduct of this appeal including the hearing of the appeal, until 5 June 2014. She was assisted by an interpreter in the Punjabi language. On and from that date she and the second appellant have been represented by solicitors and counsel, who filed on behalf of the first appellant, in accordance with leave granted at the hearing (and subject to an extension of time subsequently afforded to her), supplementary reply submissions to written submissions made by the first respondent in the appeal. I deal with those submissions in more detail at [73]-[79] below.

3        For the reasons set out below, the appellants’ appeal to this Court from the orders of the Federal Circuit Court will be allowed.

THE RELEVANT LEGISLATIVE PROVISIONS

4        The Migration Regulations 1994 (Cth) (the Regulations) relevantly provided that Student (Temporary) (Class TU) visas had a prescribed Subclass 572 (Vocational Education and Training Sector).

5        A criterion to be satisfied at the time of the decision for this subclass was that the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Sch 5A to the Regulations relating to the applicant’s financial capacity.

6        Clause 5A405 of Sch 5A sets out requirements relating to financial capacity:

(1) The applicant must give, in accordance with this clause:

(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:

(i) course fees;

(ii) living costs;

(iii) school costs; and

(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and

(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

(lA) If the applicant is:

(a) fully funded; or

(b) an applicant:

(i) who is not funded, wholly or partly, by:

(A) the Commonwealth Government, or the government of a State

or Territory; or

(B) the government of a foreign country; or

(C) a multilateral agency; and

(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and

(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or

(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:

(i) a provincial or state government in a foreign country, with the written support of the government of that country; or

(ii) an organisation specified by the Minister in a Gazette Notice for this paragraph;

the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.

(2) In this clause:

acceptable individual means one or more of the following:

(a) the applicant;

(b) the applicant’s spouse or de facto partner;

(c) the applicant’s parents;

(d) the applicant’s grandparents;

(e) the applicant’s brothers and sisters;

(f) an uncle or aunt of the applicant who is:

(i) an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) usually resident in Australia.

financial support, from an applicant’s proposed education provider, means:

(a) a scholarship that:

(i) is awarded on the basis of merit and an open selection process; and

(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and

(iii) is awarded to the greater of:

(A) not more than 10% of overseas students in a course intake; and

(B) not more than 3 overseas students in a course intake; or

(b) a waiver of the applicant’s course fees carried out in the following circumstances:

(i) the applicant is part of an exchange program that involves:

(A) a formal agreement between an education provider and an

education institution in a foreign country; and

(B) the reciprocal waiver of course fees as part of that agreement;

(ii) the applicant proposes to study full-time;

(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.

funds from an acceptable source means one or more of the following:

(a) if the applicant:

(i) has successfully completed at least 75% of the requirements for his or her principal course; and

(ii) has applied for the visa in order to complete the course; and

(iii) does not propose to undertake any further course;

a money deposit held by an acceptable individual;

(aa) if paragraph (a) does not apply — a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application;

(b) financial support from:

(i) the applicant’s proposed education provider; or

(ii) the Commonwealth Government, or the government of a State or

Territory; or

(iii) the government of a foreign country; or

(iv) a corporation that:

(A) conducts commercial activities outside the country in which it is

based; and

(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or

(v) a multilateral agency; or

(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or

(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or

(viii) an acceptable non-profit organisation;

(c) a loan from a financial institution that is made to, and held in the name of, an acceptable individual;

(d) a loan from the government of the applicant’s home country.

7        In summary, then, the first appellant as the principal applicant needed to supply “evidence” she had funds from an acceptable source sufficient to meet course fees and living costs for the first 36 months, as well as “travel costs”. This could include a money deposit that an acceptable individual had held for a period of at least the six months before the date of the visa application.

8        Although there are a number of provisions within Part 5 of the Migration Act 1958 (Cth) (the Act) affecting the performance of the Tribunal’s functions and the exercise of its powers which are relevant to the resolution of the issues in this appeal, the key provision is s 362B of the Act. That is the discretionary power the Tribunal exercised to bring the review to an end and make a decision adverse to the appellants. Section 362B provides:

362B Failure of applicant to appear before Tribunal

(1) If the applicant:

(a) is invited under section 360 to appear before the Tribunal; and

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

9        Sections 379A and 379C are also relevant to the determination of the appeal, especially in consideration of the Minister’s arguments. They provide:

379A Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that:

(a) require or permit the Tribunal to give a document to a person (the recipient); and

(b) state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a) who is at least 18 years of age; and

(b) who a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes:

(i) has day-to-day care and responsibility for the minor; or

(ii) works in an or for organisation that has day-to-day care and responsibility for the minor and whose duties. whether alone or jointly with another person. Involve care and responsibility for the minor.

Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

Giving by hand

(2) One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.

Handing to a person at last residential or business address

(3) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review: and

(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c) appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and

(b) by prepaid post or by other prepaid means; and

(c) to:

(i) the last address for service provided to the Tribunal by

the recipient in connection with the review; or

(ii) the last residential or business address provided to the

Tribunal by the recipient in connection with the review:

or

(iii) if the recipient is a minor — the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

Transmission by fax, e-mail or other electronic means

(5) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:

(a) fax; or

(b) e-mail; or

(c) other electronic means;

to:

(d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor — the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

Documents given to a carer

(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

…

379C When a person other than the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).

Giving by hand

(2) lf the Tribunal gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3) If the Tribunal gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document; or

(b) in any other case — 21 days after the date of the document.

Transmission by fax, e-mail or other electronic means

(5) If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.

Document not given effectively

(7) If:

(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

RELEVANT FACTS

10        The central factual event on which the appellants’ appeal turns is the decision by the Tribunal to proceed to make a decision on the review brought by the appellants, in circumstances where the Tribunal had invited the appellants to attend a second hearing for the purposes of the review and the appellants did not attend that hearing.

11        To understand how the arguments developed as between the parties about the lawfulness of the Tribunal’s decision to proceed to make a decision on the review, and particularly to resolve the question of whether that decision is legally unreasonable, it is necessary to set out in some detail the course of the review before the Tribunal in particular. As a Full Court of this Court said in Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 at [42]:

Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.

12        Relevantly, the reason for the delegate’s refusal of the application for a student visa was that the delegate was not satisfied the first appellant had demonstrated access to sufficient funds, in accordance with cl 5A405(1A) of Sch 5 to the Regulations. Specifically, the delegate found that the first appellant did not respond to a letter sent by the delegate requesting she provide evidence of access to sufficient funds.

13        The day after the delegate’s refusal of the student visa, an email was sent on behalf of the first appellant by her then migration agent in the following terms:

I refer to the student visa application of Mrs Ranjit Kaur (born 20/04/1986) lodged on 12 March 2010 and recently refused.

…

On 24/06/2010, I received your email advising that pending documents were due no later than 25/06/2010. As the student was finding it difficult to arrange for the required documents from India in such a short time, I had requested you to extend the deadline of 25/06/2010, by 14 days as not only I had not received your initial communication (letter or email), I had also not received a reply towards my query sent to Case.Officer.NSW.Students@immi.gov.au on 27/04/2010.

The refusal letter received yesterday is also dated 24/06/2010, that is a day earlier than the deadline of 25/06/2010.

Under these circumstances, I request you to kindly reopen Mrs Kaur’s application and allow her 14 days to provide the pending documents.

14        On the evidence before the Court, that communication received no response from the delegate, or any other person.

15        On 19 July 2010, the first appellant accordingly lodged a review application with the Tribunal. It appears she was no longer represented by a migration agent, and on the application form instead she ticked the box indicating the Tribunal should send correspondence “to me at my address”. The nominated address was in New South Wales.

16        The Tribunal wrote to the appellant on 22 July 2010 acknowledging receipt of her review application and informing her of the following matters:

It is important that you:

•    tell the Tribunal immediately if you change your contact details (such as your home address, your mailing address, your telephone number, your fax number or your email address);

•    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

•    use your MRT case number 1006003 when you contact us.

If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.

17        During the currency of the Tribunal’s review, the first appellant lodged with the Tribunal three separate notifications of changes to her contact details, by the form prescribed. The evidence is that these were received by the Tribunal on 22 December 2010, 22 May 2011 and 10 February 2012 respectively. The first two changes retained a New South Wales residential address as the nominated address. The third change, which is material to the issues raised in the appeal, nominated an address in Victoria. In the box reserved for “new residential address” was written:

8/32[street name], Victoria

18        In the box reserved for “new postal address” was written:

8/32 [street name], Melbourne Victoria 3163

19        A mobile telephone number and email address were also provided by the first appellant in the boxes on the form reserved for these details. On the evidence this address may still be the appellants’ current address. Accordingly, the street name has been omitted from these reasons for judgment.

20        Although the application had been lodged on 19 July 2010, the evidence discloses no steps taken by the Tribunal on the review, aside from the initial formulaic letter, in terms of contact with the first appellant, for almost two years. On 3 May 2012, an invitation to “give evidence and present arguments relating to the issues in your case” was sent to the first appellant by letter. The letter was addressed by the Tribunal in the way set out by the first appellant in the box reserved for “new postal address”. The letter asked the first appellant to provide the following information by 28 May 2012:

•    Evidence that you are currently enrolled in, or the subject of a current offer of enrolment, in a registered course, as required by cl.572.231, or the equivalent clause in other student visa subclasses.

•    Evidence that you meet the financial capacity requirement as set out in Clause 5A405 for the purposes of cl.572.223(2)(a)(i). Please note that this provision only applies in relation to subclass 572 visas. Depending on your current enrolment, you may be eligible for a visa in a different subclass and different financial capacity requirements may then apply.

•    Evidence that you have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to your financial capacity.

21        The first appellant returned a “response to hearing invitation” form, dated 28 May 2012, indicating she would attend the hearing. With that response she sent a series of documents, in attempted compliance with the Tribunal’s request.

22        On 4 June 2012, the first appellant forwarded to the Tribunal an email chain, with her Tribunal case reference number, attaching a letter from her previous migration agent reiterating the complaints made by the migration agent to the delegate but otherwise providing no substantive information or assistance in respect of the review before the Tribunal.

23        The hearing took place on 4 June 2012 and, in the Tribunal’s reasons for decision, it describes the course of the hearing, and the matters raised by the Tribunal and presented by the first appellant. There is no basis in the evidence before the Court to doubt the accuracy of the Tribunal’s summary in its reasons of the exchanges at the hearing between the first appellant and the Tribunal. The reasons state:

The Tribunal discussed with the applicant the amount she would need to demonstrate she has access to in accordance to Schedule 5A. The Tribunal explained to the applicant that based on her enrolment, it would calculate the amount required on the basis of the date she is expected to be granted the student visa to one month after the completion of her course. The Tribunal explained to the applicant in some detail the level funds [sic] required to be shown on the basis of calculations of costs for travel, course fees and living expenses for her and her spouse as set out in schedule 5A.

The applicant stated that she was being financially supported by her sister, Parminder Kaur. When asked how her sister accumulated the funds, she stated that her sister sold property in India. She stated that her sister had transferred $7,000 to her recently and that she had also brought money with her when she came to Australia. She stated that her mother is also able to provide financial support.

The Tribunal put to the applicant that the overdraft facility in her sister’s name was secured against a fixed deposit and that it was concerned that she had not provided evidence of the source of funds of the fixed deposit against which that facility was secured. She stated that she had not received any letter asking her about providing this. The Tribunal explained to the applicant that it would provide her with additional time to provide the documents. The Tribunal explained to the applicant that if her sister had accumulated the funds through the sale of property, then the Tribunal would need to view the evidence of the sale of that property, such as a deed of sale, and evidence of the funds received from the purchaser.

24        After the hearing and by a letter dated 5 June 2012 the Tribunal invited the first appellant to provide further information. The letter did not express the invitation for further information as relating only to the first appellant’s sister, or her mother, but in more general terms. It said:

I am writing about the applications for review made by you in relation to decisions to refuse to grant Student (Temporary) (Class TU) visas.

You are invited to provide the following information in writing:

•    Evidence that the regular income of any individual (including the applicant) providing the funds to the applicant was sufficient to accumulate the level of funding being provided by that individual. Without limiting the way in which this requirement may be met, such evidence may include, evidence of regular income, official tax records, and where funds are obtained from sale of property, evidence of a registered deed of sale, and that funds have been received from the purchaser.

The information should be received at the Tribunal by 13 July 2012. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 13 July 2012, you may ask the Tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the Tribunal before 13 July 2012 and you must state the reason why the extension of time is required.

The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.

25        Once again, that letter was addressed by the Tribunal in the way set out by the first appellant in the box reserved for “new postal address”. The first appellant sent a further document, and a certified translation of it from Punjabi to English, by email to the Tribunal on 5 July 2012. The translation suggests the document is an agreement for the sale of land in which the first appellant’s sister was the vendor. In that sense, the document would seem to constitute “evidence of the sale of that property” as the Tribunal suggested it required.

26        The evidence then discloses the first appellant telephoned the Tribunal on 6 July 2012:

The RA telephoned to ask whether or not she need to provide evidence of 60000 rupees. Because the property was sold for 27 lacs and 40000 in cash and her sister has deposited 60000 from her personal savings. I informed her that I shall speak to the member about her enquiry and will inform her accordingly.

27        The first appellant made another telephone inquiry on 10 July 2012:

The PRA called regarding evidences required by the Tribunal and in particular about the sale of property. It was difficult to understand what information she was trying to get across. I asked that she put her statements in writing or any evidences she wished to submit to the Tribunal by email and I would pass it onto the member for consideration. She said she will, call ended.

28        Following the advice she received from the Tribunal, on 13 July 2012 the first appellant sent an email inquiring again whether she needed to “show evidence” of the shortfall between the amount for which the property was sold (Rs 27,40,000) and what it appears she understood was the amount she had to provide evidence of (Rs 30,00,000). She followed this up with a telephone call on 16 July 2012, the contents of which were recorded by an officer of the Tribunal in the following way:

Progress Enquiry: Applicant called asking for progress. I advised we have received her email sent on Friday and it will be given to the member for consideration. I said the member is not in as yet, however should the Tribunal require further evidance [sic] we will contact her. Call end.

29        The response given by email by the Tribunal, on the same day, was as follows:

Thank you for your email below which has been brought to the Member’s attention. We refer to previous correspondence sent to you by the Tribunal. If you would like to provide any further information in support of your application please do so as soon as possible as the Member will make a decision at any time.

30        It might be observed that, in dealing with an unrepresented applicant whose first language is not English about the requisite level of proof for the financial capacity of persons resident in India, including proof of transactions which have taken place in India, this response was somewhat unhelpful and uninformative. Nevertheless, for present purposes what should be noted is the Tribunal’s chosen method of communication was email.

31        Despite the threatened imminence of a decision by the Tribunal, none was made. Rather, on 4 September 2012, the Tribunal communicated by email with the first appellant in the following terms:

We refer to our previous correspondence sent to you dated 5 June 2012.

In relation to you claim that funds are from the Sale of land the Tribunal has asked you to provide:

•    Deed of Sale;

•    Evidence of funds being received from the purchaser

In relation to your claim that the funds were also from your sister’s savings the Tribunal is also requesting you to provide:

•    Evidence of ongoing savings period of 6 months transactions prior to May 2012 (i.e from Nov 2011 – May 2012) and evidence of the source of those savings, such as evidence of income, tax records etc.

The information should be received at the Tribunal by cob 7 September 2012.

If you have any questions, please contact me on the number listed below.

32        The Tribunal followed this letter up with a call on the same day, asking the first appellant to check her email and to provide the requested information by 7 September 2012. On 6 September 2012 the first appellant telephoned the Tribunal explaining that her sister was “having complications obtaining the deed of sale” and she needed more time to provide it, and stating she had emailed a letter through. The Tribunal officer asked her to fax the letter, which she did. The letter relevantly stated:

I request you to please allow me some more time as I have asked my elders in India to get the required documents. It is taking a while to get them as courts and official work takes a lot of time at my place. Also, as our land is in the state of punjab (India), city Jalandhar, properties are still sold and bought on the basis of written agreement as well as through deed of sale. In our case the land was purchased on agreement and sold through agreement, as you would have seen in the presented documents. I also want to mention that this agreement is attested by government of India and can be verified by Indian government bodies.

Though these complications I’ve still asked my elders in India to do the best to get a deed of sale or anything better. Please allow me more time. I would be looking forward to your kind reply.

33        The Tribunal’s imposed deadline of 7 September 2012 passed without a response from the Tribunal to the first appellant’s request. The first appellant sent a further email on 10 September 2012 asking about her request for an extension of time. In response, the Tribunal telephoned the first appellant on the same day and informed her that the Tribunal member constituted to deal with her review had granted an extension of time until 14 September 2012. The first appellant sent a further email on 11 September 2012 stating relevantly that

as I mention in my previous email that my sister can’t make deed of sale for that property, could u plz tell me if there is another document which I can provide as proof for sale of that property.

34        I infer the explanation referred to here is the one given by the first appellant on 7 September 2012: namely that properties are bought and sold in the Punjab on the basis of a written agreement and not a deed of sale and therefore such a document did not exist for the sale of her sister’s property. The first appellant made a similar request by telephone to the Tribunal on the same day. The Tribunal asked for a mobile telephone number on which to contact her, and on the same day the first appellant’s “case officer” called her. Aside from the issue about the proof of the sale of the property, the case officer also informed the first appellant as follows:

I further reminded her that she also needed to provide evidence of ongoing savings as stated in our email dated 11/9. She said she thought she had already provided this previously I asked that she refer to our email dated 11/9 which states to provide evidence of ongoing savings for the period of 6mths transactions prior to May 2012. She said she will. Call end.

35        Late in the evening of 11 September 2012, the first appellant sent the following email to the Tribunal:

dear sir or madam

As i told you my sisster cant make deed of sale for that property because that property was sold on basis of agreement and bought on basis of agreement. just want to know if you are not satisfied with my sisters funds, mother and grand parents also are ready to pay for my study and living expence in australia. if you will give me permission then i will ask them for funds. I would be looking forward to your kind reply.

36        The response from the Tribunal to this inquiry was to inform the first appellant she could “submit any evidence/documents in support of her application up until Friday 14th Sept and the member will consider it”. Outside the time given by the Tribunal, in the evening of Sunday 16 September 2012, the first appellant sent by email with attachments some further documents. A further email sent by the applicant on Tuesday 18 September 2012 refers to the sending of some documents by mistake on Friday 14 September 2012, but the evidence is unclear as to which documents were sent by mistake. The document sent related to savings held in the name of a person other than the first appellant’s sister, the funds having been held, according to the document, since 7 August 2012, which was not within the period specified by the Tribunal in its letter extracted at [24] above.

37        Despite the rather short extension of time given by the Tribunal (of seven days), which might have seemed to suggest the Tribunal was intending imminently to make a decision on the review, the Tribunal engaged in no further communication with the appellant until almost two months later, on 8 November 2012. The Tribunal had not made a decision by this date. Instead, the Tribunal informed the first appellant of a mistake in its email of 4 September 2012. On 8 November 2012, the Tribunal communicated with the first appellant by email and stated:

We refer to our email below requesting you to provide evidence of savings for a period of 6 months. Please note that the period noted below is incorrect. The regulations, at cl. 5A405 in relation to ‘funds from an acceptable sources’ refers to a money deposit held by an acceptable individual for at least 6 months immediately before the date of the application. Information before the Tribunal indicates that your visa application was made on 12 March 2010. If you are relying on money deposits, then you are required to provide evidence that the funds were held in the account for the period, at least, from 11 September 2009 to 11 March 2010.

You must provide evidence of your financial capacity to undertake study in Australia in accordance with clause 5A405. Extracts of the relevant regulations and cl.405 have been attached for reference.

You are requested to provide this information to the Tribunal by 15 November 2012.

38        Again, a period of seven days was specified in which the first appellant must provide the information, although what was being requested was historical financial information from India dating back more than two years. The email address used by the Tribunal was the same email address it used on previous occasions, and the one which the first appellant notified as her email address in the form referred to at [17]–[19] above and which was received by the Tribunal on 22 December 2010.

39        To ensure the first appellant had received the Tribunal’s email, the Tribunal followed up the email with a telephone call to the first appellant, asking her to check her email, which she said she would. This was at least the second time the Tribunal had proactively called the first appellant after it sent a communication to her.

40        A few days later, the first appellant sent an email to the Tribunal asking for further time to provide the documents requested. That was a reasonable request: the deadline imposed by the Tribunal gave the first appellant only five working days to locate documents likely to be in India and obtain any necessary certifications and translations, bearing in mind what was being sought related to events of more than two years before. The Tribunal gave the first appellant a further two weeks.

41        On the date on which the two weeks expired (26 November 2012), the first appellant sent by email with attachments enclosing further documents from India. She then asked for another day to provide a further document, which request was granted. The first appellant then revised this request, by an email which stated:

you allowed me to provide all the documents by 28th of November. this is a month of holidays in india we have festivals in this month. 27th of november was half day and have birthday of our god on 28th on november. all government branches will be closed. it is my humble request to you please allow me time till Friday. even i wasn’t know that we have holiday in india and yesterday i wrote a letter without any consideration about holiday in india. it is my humble request to you please allow me time till friday i would be looking forwardr to you kind reply thank you

42        The evidence does not disclose whether the Tribunal formally agreed to a further extension but, in any event, by emails on 3 December 2012 and 5 December 2012, the first appellant sent a further series of documents. These November and December sets of documents appeared on their face to show that one Mohinder Kaur and one Jaswinder Kaur each had held term deposits in their respective names since 2005 and 2007, with the original deposit amounts being Rs 24,30,517 and Rs 30,45,475. There were also numerous receipts for the sale of rice and wheat, which it can be inferred were produced to demonstrate regular income. Further, there was an affidavit sworn by the first appellant’s grandmother attesting to her capacity and willingness financially to support the first appellant and her husband in Australia.

43        The evidence does not disclose any further contact with the first appellant from the Tribunal by telephone or email. Rather, the response from the Tribunal, some five weeks later and at the end of January 2013, was to issue an invitation, by letter, to the first appellant to attend a further hearing. The letter took exactly the same form as the first letter issued on 3 May 2012. It was in that sense a “form” letter. It did not indicate it was an invitation to a second hearing. The first appellant’s address was reproduced at the top of the letter in the same way it appeared on the “Change of contact details” form she had completed in February 2012, and in the same way the two previous letters to her had been addressed, which had reached her.

44        It is now apparent from the evidence that this letter did not reach the first appellant. A date imprint on the Tribunal’s envelope indicates the letter was sent by registered post from the Tribunal on the date the letter bears: namely, 29 January 2013. The envelope also has some large writing in felt pen on it which says, “RTS”, then a marking which is illegible, and then “unknown”. In evidence also is a copy of the Tribunal’s letter stamped with a “received” stamp by the Tribunal on 4 March 2013.

45        In written submissions filed in both her proceeding before the Federal Circuit Court and on this appeal, the first appellant stated that “she never received the usual calling card left by Australia Post, when there is no one at home to collect a registered letter”. That submission is reproduced in the decision of the Federal Circuit Court: Kaur v Minister or Immigration and Border Protection [2014] FCCA 161 at [28], and did not appear to be the subject of any contest by the Minister, although it was plainly in the nature of evidence rather than submission. Given the appellant was unrepresented at both the Federal Circuit Court and in this Court during the substantive hearing, and in the absence of any contest by the Minister about that statement, I am prepared to accept as a fact that the first appellant did not receive what she described as “the usual calling card” from Australia Post, to alert her to an item of registered post waiting for her.

46        The only inference I am prepared to draw from that evidence, considered as a whole, is the obvious one: namely, that the letter was not delivered to the first appellant at her residential address. There is insufficient evidence to infer the letter was returned by Australia Post before any delivery was attempted because the address did not include a suburb, or to draw any inferences about what kind of delivery attempt was made. For the purposes of the conclusions I have reached no further inference is required in any event.

47        The evidence discloses that several weeks before the letter was returned to the Tribunal, a Tribunal officer had taken action on the basis of the absence of a response from the first appellant to the second hearing invitation, and referred the fact of “no response” to the Tribunal member. This occurred on 14 February 2013. The relevant part of the form to be filled in by the Tribunal member is blank.

48        The Tribunal officer who filled in the “no response” form was the same Tribunal officer as the author of the second hearing invitation letter, and the same Tribunal officer as the person who filled in a stamp on the second hearing invitation letter indicating the letter was received back, undelivered, at the Tribunal, on 4 March 2013. This officer was a different person to the one the evidence discloses as the principal contact person within the Tribunal for the first appellant. The principal contact person is sometimes referred to in the evidence as the appellants’ “case officer”.

49        Given the completion of the “no response” form in mid-February 2013 and its reference to the Tribunal member constituted for the review, it appears that from that date — namely, 14 February 2013 — there was a decision by the Tribunal member, as well as by the Tribunal officers involved in the first appellant’s review, not to take any further steps to contact the first appellant. Had contact been attempted after 14 February 2013, I infer it is highly probable, based on the previous contact between the Tribunal and the first appellant, and her reactions to contact from the Tribunal, that the first appellant would have appeared at the hearing on 20 February 2013.

50        In these circumstances, whether or not the Tribunal member knew the hearing invitation had been returned to the Tribunal before the review was completed and the decision published is not the central issue. Rather, the central issue is that, well prior to the appointed hearing date on 20 February 2013, both the Tribunal officers and the member (I infer from the hearing response form which indicates the non-response was referred to the member) knew the first appellant had not responded to the hearing invitation. In the context of the facts of the course of this particular review, that was highly unusual behaviour for the first appellant.

51        It is clear from the evidence that the previous mechanisms employed by the Tribunal, through its officers, to contact the first appellant were not employed at this stage of the review — neither to send the second hearing invitation letter, nor to follow up afterwards. The second hearing invitation was not sent by email originally. Nor, after a “no response” was recorded by the Tribunal and referred to the Tribunal member, was a further copy sent by email. Nor were any follow up emails sent, nor any telephone calls made, contrary to what had become the Tribunal’s established pattern with the first appellant over a considerable period of time.

52        The Tribunal’s decision, to refuse to grant the first appellant and her husband the relevant student visas, was given on 7 March 2013. A letter enclosing the decision was sent to the first appellant on 8 March 2013, to the same address and in precisely the same manner as the two hearing invitations and the 5 June 2012 letter, two of which reached her and one of which did not. The first appellant received this letter and the decision, which only adds to the uncertainty about why the third of the four letters addressed in precisely the same way was returned. Further, despite the Tribunal having had that letter returned, it continued to use the address, in the same form, for the most important notification during the review — that of the decision itself.

53        On 26 March 2013, the first appellant sent an email to the Tribunal, stating relevantly:

i have got already my decision and in refusal letter my case officer has written that on 29th of January the tribunal memeber wrote a letter to invite me give the oral evidence and present arguments at a hearing on 20th february. honestly I did not receive that letter on my addres and i did not attend the hearing. tribunal did not contact me via phone call or any e mail. Could you plz send me the copy of letter which you had written for me on 29th january, it will be very thankful

…

54        She also telephoned the Tribunal, making the same request. On the same day, the Tribunal, somewhat ironically in the circumstances, sent her by email the second hearing invitation.

THE TRIBUNAL’S DECISION

55        The basis for the Tribunal’s decision refusing the visas was that it was not satisfied the first appellant met the criterion in cl 5A405(1) that she have “funds from an acceptable source” for the first 36 months of her course, by way of a money deposit held for at least six months prior to the date of her visa application. It found the first appellant relevantly required the sum of AU $24,675 to meet this criterion.

56        In considering the documentation submitted by the first appellant, the Tribunal made the following findings:

    That it was not satisfied the person identified as “MK” in the documents was the first appellant’s grandmother;

    That the receipts for deposits in the name of her grandfather did not appear to date from a sufficiently early period of time to meet the criterion of being held six months before the visa application;

    That the deposit amount said to be held by the first appellant’s sister since 2005 (a date which would easily satisfy the six month requirement) only indicated the amount of funds in the deposit at November 2011, rather than at any earlier time;

    Although the first appellant had provided evidence of an overdraft facility available to her sister, secured in part by money deposits and in part by an interest in land, the Tribunal was not satisfied that the “agreement to sell” document was sufficient, without further evidence; and

    Despite the first appellant supplying evidence of the transfer of AU $7,100 to her, from her sister, in May 2012, the Tribunal was not satisfied “on the basis of that receipt alone” that the first appellant would have access to the declared loan funds while she held any visa granted. Access to loan funds, as can be seen from the terms of cl 5A405(1), is an alternative criterion to a money deposit.

57        At various points in the reasons, the Tribunal stated that, since the first appellant did not appear at the second hearing, the Tribunal’s doubts or concerns could not be addressed or discussed. It also pointed to evidence which had not been provided (such as evidence of the relationship between the first appellant and one of the people said by the documents to be able to supply funds) which, clearly, was evidence which could have been provided orally by the first appellant at a further hearing.

58        In relation to the giving of the second hearing invitation, and the first appellant’s non-appearance, the Tribunal’s reasons contained the following paragraph (at [37]):

On 29 January 2013 the Tribunal wrote to the review applicants by letter addressed to the first named applicant, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 20 February 2013. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. No response was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. In these circumstances the Tribunal has decided to make its decision on the review without taking any further action to enable the applications to appear before it.

THE FEDERAL CIRCUIT COURT DECISION

59        The application for judicial review of the Tribunal’s decision, made on 8 April 2013, contained the following grounds:

1. The Tribunal did not give me an opportunity to attend the hearing.

2. I did not receive the tribunal letter dated 29 January 2013.

3. The Tribunal knew that I did not receive it as the letter was returned.

4. The Post Code provided by the Tribunal was for Glenhuntly not Melbourne. It was clearly an error.

60        The Minister’s written submissions before the Federal Circuit Court characterised the appellants’ arguments in three possible ways. First, as a breach of its obligations under s 360 of the Act, second as a complaint that the non-receipt in fact of the second hearing invitation by the first appellant gave rise to some error in the Tribunal’s decision, or third, as a challenge to the reasonableness of the Tribunal’s exercise of discretion pursuant to s 362B of the Act to proceed to make a decision on the review following the non-appearance at the second convened hearing. However the argument was characterised, the Minister submitted it should not succeed.

61        The Federal Circuit Court agreed with the Minister’s submissions that the course of conduct embarked upon by the Tribunal did not reveal any jurisdictional error. After dealing with an adjournment application which forms no part of the appeal to this Court, the Federal Circuit Court relied on the terms of ss 379A(4) and 379C(4) of the Act to find first that the first appellant was deemed to have received the second hearing invitation seven working days after it was sent and, second, that, even if the Tribunal had known of her actual failure to receive the invitation, it was not obliged to have “followed up” the second hearing invitation. The Federal Circuit Court relied on a passage from SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 at [60] per Rares J which, with respect to the Federal Circuit Court, does not support that proposition. Rather, it supports the (clearly correct) proposition that the Tribunal had a discretion whether to proceed to determine the review and the more limited proposition that s 430 of the Act does not in its terms extend to imposing a statutory obligation to provide reasons for the manner in which that discretion is exercised.

62        The Federal Circuit Court then referred to the Full Court decision of Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [38]-[39], and to some further passages from SZHSQ 155 FCR 159; [2006] FCA 1295. The Federal Circuit Court relied on an observation by Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [24], where his Honour said that the equivalent power to s 362B in relation to the Refugee Review Tribunal (namely, s 426A) “must not be exercised capriciously”. The Federal Circuit Court concluded that the evidence did not go so far as to suggest the Tribunal’s exercise of discretion was capricious. The learned primary judge did not explain what he meant by “capricious”, nor was that explained in NBBL 152 FCR 592; [2006] FCA 1045. Although the Federal Circuit Court referred to the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, and decided the present case was not of that sort, it again limited its reference to Li to the concept of “capricious”. That term is not used by the plurality in Li in the passages which form the ratio of that case. It is used by French CJ (at [28]) in conjunction with the description “arbitrary”, which is often where the word is located in discussions of reasonableness.

63        The Oxford English Dictionary (online edition) defines “caprice” as “[a] sudden change or turn of the mind without apparent or adequate motive; a desire or opinion arbitrarily or fantastically formed; a freak, whim, mere fancy”, and “capricious” as “guided by whim or fancy rather than by judgement or settled purpose; whimsical, humoursome”.

64         The term used by the plurality in Li is “legal reasonableness”: see Li 249 CLR 332; [2013] HCA 18 at [66]. While a capricious exercise of power might be legally unreasonable, there will be other exercises of power which are legally unreasonable but which will not be aptly described as capricious.

65        In her affidavit in support of her application for review in the Federal Circuit Court, the first appellant alleged that the Tribunal knew she had not received the second hearing invitation because the letter was returned to the Tribunal. She does not say, but it is implicit in her allegation, that because it was received by the Tribunal on 4 March 2013 and the Tribunal’s decision was not made until 7 March 2013, the Tribunal should be taken to have known the second hearing invitation was returned before it completed its review.

66        The Federal Circuit Court dealt with this issue in its reasons. The Court found (at [22]):

While it is possible that the Tribunal member was aware that the invitation letter had been returned, it seems far more probable to me than otherwise that this was not the case. The Tribunal’s decision is entirely consistent with a Tribunal member who had wished to discuss matters with the applicant being unable to do so because of their non-attendance. It is, in my view, less probable than otherwise that the Tribunal member deliberately and maliciously suppressed from mention a knowledge that the applicants had, in fact, not been invited in the sense that they had not received the invitation.

67        As I have said at [50] above, I do not see the Tribunal’s knowledge (actual or constructive) about the return of this letter as the central factual issue in assessing the ground of review pressed on the appeal.

THE APPELLANT’S SUBMISSIONS

68        The notice of appeal from the Federal Circuit Court’s decision involves one ground:

1.    The decision of the Tribunal and the Court was a denial of procedural fairness and natural justice and is affected by an error of jurisdiction

Particulars

The main applicant was not given the opportunity to attend the second hearing and give the tribunal an explanation with regards the large number of documents she had provided the tribunal with after the first hearing on 4 June 2013.

69        The appellants do not dispute that the Tribunal sent a letter of invitation to a second hearing to the first appellant, but submit that when they did not appear, the Tribunal should not have proceeded to determine their applications without making other attempts to contact the first appellant. The appellants submitted that she had received two other letters addressed in the same way as the second hearing invitation: one before and one after that letter was sent. In fact, as I have earlier observed at [52], there were three. They submitted also that the first appellant sent and received emails to and from the Tribunal.

70        The appellants contend that from the Tribunal’s reasons it is evident that there were matters it would have raised with the appellants had they attended, and that in its reasons the Tribunal allowed for the possibility the appellants would have been able to dispel its concerns about some of the documents so as to find the first appellant had satisfied the financial capacity criteria. The appellants expressly contended it was “unreasonable for the MRT to proceed to make a decision on the review”. Although this allegation was not in terms present in the notice of appeal, the argument on the appeal proceeded, without objection by the Minister, on the basis that the appellants’ contentions involved both denial of procedural fairness and legal unreasonableness. That is also the way the Federal Circuit Court approached its review.

71        I do not understand the appellants’ submissions as contending that a tribunal is obliged or required to postpone concluding its review, nor that it is obliged or required to contact a review applicant. Rather, the appellants correctly identify that the Tribunal had a discretion. They contend the manner in which the Tribunal exercised its discretion denied them procedural fairness. Alternatively, they contend the manner in which the Tribunal exercised its discretion was unreasonable. Although they are not trained lawyers, the appellants were correct in their written submissions to approach these two arguments as closely connected: see Li 249 CLR 332; [2013] HCA 18 at [92] per Gageler J.

THE FIRST RESPONDENT’S SUBMISSIONS

72        The first respondent made three submissions in his written submissions and at the hearing of the appeal:

1.    The Tribunal was not required to invite the appellants to a second hearing. Therefore any “defect” with the Tribunal’s invitation to the second hearing could not give rise to jurisdictional error.

2.    In any event, the Tribunal did invite the appellants to a second hearing in accordance with ss 360 and 360A, which the appellants are deemed by s 379C(4)(a), (read with s 379A(4)), to have received.

3.    The Tribunal was not required to pursue any alternative ways of contacting the appellants, so that its failure to do so does not constitute jurisdictional error, nor a legally unreasonable exercise of power.

THE FIRST RESPONDENT’S FORESHADOWED FURTHER ARGUMENT

73        At the hearing of the appeal, and at the end of oral submissions, junior counsel for the Minister sought leave to raise a fourth argument supporting the proposition that the Tribunal’s decision was not affected by jurisdictional error. The argument was complex and involved what was described as the “cascading” provisions in ss 359(2) (read with s 359B), 359C(1), 360(3) and 363A of the Act. It was said that these provisions operated so as to disentitle, or not entitle, the appellants to appear at any second hearing convened by the Tribunal and, indeed, to preclude the Tribunal itself having any power to convene a second hearing and permit them to appear. That rather extraordinary submission was ultimately not pressed by the Minister.

74        Instead, in written submissions also signed by senior counsel, the Minister used the leave granted to reiterate and expand upon the principal submissions made at the hearing. These submissions, while dealing with the first and third arguments as put at the hearing, developed those arguments in a different way and to a different level by submitting the Court was bound to reach particular conclusions. I deal with these submissions in more detail below.

75        Although the terms of the leave granted were wide enough to permit further argument on matters already the subject of oral submissions, these detailed and differently couched submissions made by the Minister effectively re-argued the Minister’s whole case on the appeal. Without convening a further hearing, with all the significant resources involved in doing so, those submissions could not be developed and tested, that being the purpose of an oral hearing on an appeal. Especially given that at the time they were made the appellants were unrepresented, submissions of this kind should not be encouraged.

76        Two supplementary submissions were developed by the Minister. First, that a single justice of this Court is bound to apply Full Court authority and conclude that, even if the Tribunal had actual or constructive knowledge that the second hearing invitation had not reached the first appellant and was returned, the Tribunal did not make a jurisdictional error in deciding to proceed to make a decision on the review after the appellants failed to appear on 20 February 2013. The Full Court authority said to bind the Court in this way was identified as SZFHC 150 FCR 439; [2006] FCAFC 73, SBSC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 77, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134, and Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64. Three other cases were referred to in footnotes: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, SZDPB v Minister or Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 and MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552; [2009] FCAFC 82. Relying on Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200, the Minister submitted that, since none of these decisions were overruled by the High Court in Li, and all are “precisely on point”, the reasoning in Li could not be applied in preference to what was submitted to be the binding effect of those Full Court decisions.

77        The second submission was that, even having regard to the principles explained in Li, it was not open to the Court to conclude that the Tribunal’s decision to proceed lacked an “intelligible justification”. Unless the Court found the decision lacked an intelligible justification, the Minister submitted the Court could not find the decision to be legally unreasonable. There was, the Minister submitted, a “range of possible reasons” why the Tribunal might have decided to proceed to determine the review after the appellants failed to appear, and because of the existence of this range of reasons, the Tribunal’s decision could not be characterised as legally unreasonable. The Minister’s written submissions engaged in some speculation, not based in any evidence before the Court, nor in the Tribunal’s written reasons, about what those possible reasons might be.

THE FIRST APPELLANT’S FURTHER SUBMISSIONS

78        In supplementary written submissions filed in accordance with leave granted at the hearing of the appeal, counsel and solicitors now retained by the first appellant developed submissions on her behalf in more detail, responsively to the further submissions made on behalf of the Minister. Those submissions emphasised what was described as the “very different factual scenario” from the authorities relied on by the Minister in his submissions and said to be binding on this Court.

79        The first appellant further submitted that, since the Tribunal gave no reasons for its decision to proceed, it is not possible to discern an intelligible justification and the Court should not speculate in the way the Minister’s submission invited it to do. Rather, given that on the evidence the Tribunal was “well on notice” that there must have been an issue with the first appellant’s non-appearance, because of her history of contact with the Tribunal, the Tribunal should have taken some further action before deciding to complete the review and its failure to do so amounted to a breach of s 362B.

CONSIDERATION

The Tribunal’s statutory task

80        The Tribunal’s statutory task, as revealed by a consideration of the Act as a whole and Parts 5 and 6 in particular, is to arrive at the correct or preferable decision in the case before it according to the material before it: Li 249 CLR 332; [2013] HCA 18 at [10] per French CJ, referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. The fact that it is a tribunal dealing with particular subject matter does not alter the nature of its task, which remains the same as those tribunals on which fundamental aspects of its scheme was modelled, such as the Administrative Appeals Tribunal. The range of powers, discretions and obligations reposed in the Tribunal by Div 5 of Part 5 of the Act, and the way in which the statute conditions them, might on a first reading suggest that the Tribunal has a limited amount of decisional freedom as to how it conducts its review once it has embarked upon it. That would be an incorrect impression. Division 5 is an exhaustive statement of the rules of natural justice only insofar as the “matters” with which it deals: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [37]-[39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Li 249 CLR 332; [2013] HCA 18 at [18] per French CJ. Outside those matters, common law procedural fairness principles apply. Those principles, read with facultative provisions such as ss 353 and 357A(3) and general powers in (for example) s 363, combine to confer on the Tribunal the necessary degrees of flexibility to ensure it can fully perform its statutory task. For example, its power of adjournment (s 363(1)(b)), the power to take evidence by telephone (s 366), the power to require the Secretary to make further investigations (s 363(1)(d)) and the power to seek information (s 359) are all illustrations of the flexibility given by the statutory scheme to the Tribunal to enable it to perform its task.

81        Given that task, and the jurisdictional criterion in s 65 of the Act of satisfaction, it would be wrong to construe that part of the legislative scheme concerning review of decisions established by Div 5 of Part 5 of the Act as one which permits the exercises of power, or the performance of obligations, where conferred, on a “once only” basis. The nature of the subject matter of reviews, involving as they frequently do evidence or material from overseas, may mean the Tribunal needs to seek information pursuant to s 359 on more than one occasion. There may be occasions — this case is an example — where an applicant needs to give the Tribunal information in accordance with s 358 on more than one occasion. More than one adjournment of a review may be necessary — whether to enable an applicant to obtain further evidence or material, to enable the Tribunal to make inquiries, to accommodate Tribunal indisposition or an applicant’s medical condition. These are but examples. Put differently, there is no contrary intention to s 33(1) of the Acts Interpretation Act 1901 (Cth) which provides that where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

82        The discretion in s 362B should be approached no differently: in it inheres the same capacity for flexibility so as to ensure that the Tribunal’s statutory task is performed. Further, the Minister does not submit, and there is no reason in the text, context and purposes of Part 5, nor of the Act, to suppose that this discretion is not conditioned by the requirement that it be exercised reasonably, as explained by the High Court in Li.

83        None of this is to suggest that the Act requires a tribunal to postpone or refrain from making a decision on the review every time an applicant suggests she or he wishes to provide further information, or cannot meet a deadline, or fails to appear. Rather, it is to recognise the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. The terms of s 362B(2) expressly recognise the need for flexibility in the context of a particular review. While it cannot be suggested these factors were at work in the present exercise of power by the Tribunal, it would be wrong to construe the discretionary nature of s 362B as a statutory licence to the Tribunal to bring its review to an end merely because it has “had enough”, or because it wishes to visit on an applicant a negative consequence for failing to appear at a hearing.

Factual findings

84        On the basis of the evidence which I have set out above at [10] to [54], I make the following findings which are relevant to the conclusions I have reached on the question whether the Tribunal’s exercise of discretion under s 362B was legally unreasonable, and whether the Tribunal denied the appellants procedural fairness.

85        The Tribunal’s review occurred in a context where the first appellant had not supplied any information to the delegate to meet the financial criteria for the visa. The evidence discloses she was at this stage represented by a migration agent, but that representation appears not to have produced any material effect. On the evidence, all her migration agent did was complain about the delegate making a decision before the time limit imposed by the delegate had expired. The migration agent did not, on the evidence before the Court, assist the first appellant to procure and give to the Tribunal the evidence necessary to meet the criteria in cl 5A405.

86        The practical effect of that situation was that by the time the appellants lodged their review application (while no longer retaining a migration agent) the first appellant had not had the benefit of a decision-maker evaluating at all any supporting financial information the first appellant had produced at first instance. That is, she had no practical guide to the kind of information she should provide, nor to what sources were likely to be more persuasive or probative. So much would have been obvious to the Tribunal from its perusal of the file before the delegate, and the reasons for the delegate’s refusal of the student visa, as well as from the first appellant’s direct inquiries to the Tribunal.

87        The Tribunal’s review was delayed for an extraordinary length of time. The evidence offers no explanation for it but I find the delay was to a predominant extent not because of the applicant’s conduct. The review application was lodged on 21 July 2010, after the first appellant’s then migration agent had unsuccessfully requested the first-instance decision be set aside because the delegate had made a decision before the time limit for providing documents had expired. There was on the evidence no communication at all from the Tribunal until May 2012, almost two years later. The delay may reflect the Tribunal’s workload — it is not possible on the evidence to draw any conclusions. However, the fact of such delay is important in assessing what occurred in January 2013. First, there was no particular urgency about this review. The applicants were not in detention and the Tribunal’s conduct of the review until May 2012 clearly demonstrated no particular concern or imperative for the review to be determined quickly, or even reasonably quickly. Even where sometimes unreasonably short deadlines were imposed by the Tribunal on the first appellant and an imminent decision foreshadowed, no decision materialised. Second, the time that the review had taken was overwhelmingly due to the time the Tribunal needed to conduct the review, rather than any time taken because of the first appellant’s conduct. Although she did take time between May and December 2012 sending further documents to the Tribunal, and during this time asked for some extensions of the time limits imposed by the Tribunal, these seven months form but a small proportion of the entire time taken by the Tribunal to conduct the review.

88        The first appellant was compliant with the necessary processes for notifying the Tribunal of changes in her contact details. Over the course of the review she changed her residential address three times and notified the Tribunal each time. Until (and after) the non-receipt of the second hearing invitation letter the evidence suggests the Tribunal was always able easily and successfully to contact the first appellant when it needed to.

89        The evidence shows the Tribunal was proactive in contacting the first appellant. Sometimes, an officer of the Tribunal would call her to tell her the Tribunal had sent her an email. Overwhelmingly, the communications between the Tribunal and the appellant (whether initiated by the Tribunal or by the appellant) were by email and telephone. There were a considerable number of them, over a considerable period of time. This was an applicant the Tribunal knew, and treated, as involved and responsive in her review application. She was also, the Tribunal knew, anxious to supply sufficient and correct information to satisfy the Tribunal she had access to sufficient funds to meet the visa criteria. Indeed, the evidence demonstrates wideranging efforts on her part to supply a variety of documentation to meet the visa criteria, as much as might be expected by an unrepresented young person unfamiliar with the Australian migration system.

90        The first appellant responded promptly to both telephone and email contact, using the same methods. When she sent documents, she did so either by fax or by attaching them to an email. She did not post them — that is, she did not use her postal address. Nor did the Tribunal use her postal address, except for the hearing invitations and the delivery of the decision. It was not compelled by the Act to use that method of communication on those occasions: whether any internal administrative policies were responsible for the Tribunal swapping to use that method is not disclosed on the evidence.

91        The methods set out in s 379A of the Act are alternatives. Hand delivery may be used. Prepaid post may be used. ‘Other prepaid means” can be used — for example, a courier. Fax and email may be used. The Tribunal is empowered to transmit all information it is required to give to an applicant by email.

92        Although neither s 379A nor any other provision in Part 5 deals with how the Tribunal may use the telephone as a means to inform an applicant of matters, or to communicate with an applicant, the evidence clearly demonstrates the Tribunal in fact employs telephone communication on a regular basis, including to forewarn an applicant that a document has been sent by email. Applicants are, in the Tribunal’s written communications, informed they can telephone the Tribunal and speak to their case officer as one way of communicating with the Tribunal. The first appellant did so on many occasions, including after she received the Tribunal’s decision and read, for the first time, of the second hearing invitation. Telephone communications are a necessary and integral aspect of communication methods in a tribunal such as this.

93        There is no dispute, and the evidence shows, that the hearing invitation letter of 29 January 2013 was returned to the Tribunal marked “RTS”. There is no evidence about why this occurred, nor who wrote the words on the envelope, nor at what stage the delivery failed. It is difficult to understand what went wrong when both before and after this event correspondence addressed in the same way, and sent in the same way, reached the first appellant.

94        The postal services were capable of, and did, deliver three pieces of correspondence both before and after the one marked “RTS”. If the Tribunal was following the practice the Minister asserts is required by s 379A(4), these three letters must have been addressed in the same way, including a conscious decision to do that even after the 29 January 2013 letter had been marked “RTS”. The Tribunal did not, for example, change the method of delivery of its decision and send it by email, even though it knew the first appellant read and responded to the Tribunal’s emails.

95        An objective consideration of the course of conduct between the Tribunal and the first appellant, of the nature of the first appellant’s communications with the Tribunal and of her evident determination to provide sufficient information to the Tribunal leads to the conclusion, in my opinion, that the Tribunal ought to have realised the failure to file a response to the hearing invitation, and the non-appearance at the second hearing, were out of character, and departed from the pattern of conduct for the first appellant in terms of her attitude to this review.

96        Given the history of contact between the Tribunal and the first appellant, including proactive contact from the Tribunal, it is inexplicable why there was no attempt to contact the first appellant. The first occasion for that inexplicability occurred when there was no response to hearing invitation filed by the time specified. This is a review applicant who had been through the hearing invitation process once and fully complied. It is a review applicant who had been in regular contact by phone, email and fax with the Tribunal, who was actively seeking to satisfy the Tribunal as to why she met the financial criteria. The only short period without contact between May 2012 and February 2013 was due to the Tribunal not responding to the first appellant’s last communications of 3 and 5 December 2012, until it sent the second hearing invitation.

97        There was a period of six days between the time at which the absence of a hearing invitation response was known to the Tribunal, and referred to the Tribunal member, and the hearing date itself. No Tribunal officer, nor the Tribunal member, made any attempt to contact the first appellant by phone or by email, notwithstanding these had been the regular forms of communication to this point, and the Tribunal knew the first appellant was ordinarily responsive to them.

98        The second inexplicability was, it seems, that, notwithstanding the lack of response to the hearing invitation, the Tribunal maintained the hearing date of 20 February 2013 and on that date simply noted the first appellant’s non-attendance. No attempt was made to contact the first appellant on the day of the scheduled hearing when she did not appear despite the considerable course of conduct between her and the Tribunal over the previous seven months, and despite her persistent contacting of the Tribunal by phone and email.

99        Contact by telephone or email after 14 February 2013 would have had one of two effects. Either there could have been similar non-responsiveness, in which case the Tribunal reasonably could have concluded the first appellant had moved, left Australia, or did not wish to be in contact with the Tribunal about the further conduct of her review. Or, as I find would have occurred in this case, the first appellant would have responded indicating she did not receive the hearing invitation. The situation then could have been corrected by email and the hearing could have occurred as scheduled on 20 February 2013.

100        I am prepared to infer on the evidence that, if the Tribunal had called or emailed the first appellant, she would have responded in the way she did after receiving the Tribunal’s decision. That is, she would promptly have told the Tribunal that she did not receive the second hearing invitation. There is no basis in the evidence to find the Tribunal would have taken any course other than to reschedule the 20 February 2013 hearing if necessary, or maintain the date if the first appellant was able to attend on that date. Either way, the Tribunal would have conducted a second hearing with the appellants present and been able to address the concerns the Tribunal had with the documentation supplied by the first appellant.

101        If the Tribunal had called or emailed the first appellant after she failed to appear on 20 February 2013, I infer she would have reacted in the same way: that is, informed the Tribunal of the non-receipt of the letter and made arrangements to attend the hearing.

102        Whether or not the Tribunal member knew of the “RTS” before deciding to finalise its decision on the review is, in the factual context I have outlined, not as material to the assessment of whether the exercise of discretion was legally unreasonable as the argument of the first appellant, and reasoning of the Federal Circuit Court, might suggest. It is clear an officer within the Tribunal knew, because the returned letter was marked with the Tribunal’s date stamp of 4 March 2013 as having been received in the Tribunal, and also bore a stamp with the initials and signature of the same Tribunal officer who was the author of the second hearing letter. Thus, an officer involved in the appellants’ review knew the invitation had been returned to the Tribunal and not delivered to the first appellant. Whether this fact was communicated to the Tribunal member is not an inference which can in my opinion be drawn from the evidence. The fact that the decision on the review was made on 7 March 2013 provides some support for the inference. However, it is apparent from the reasons that the Tribunal decided to exercise its discretion under s 362B only after 20 February 2013, so the time it took the Tribunal to form its final views and then write its reasons equally could account for the date of 7 March 2013. As I have said earlier, what is more material is that officers in the Tribunal and, I have inferred, the member, knew the first appellant had not returned a response to hearing invitation as she had been requested to do. And, of course, the Tribunal member also knew she did not attend the scheduled hearing. Irrespective of whether, through the “RTS” letter, the Tribunal knew with certainty why she did not attend, the critical point is how out of character it was for the first appellant, in terms of the history of her contact with the Tribunal.

The first appellant’s attendance at the second hearing could have made a difference to the outcome of the review

103        It is correct, as the Minister submits, that there is no challenge by the appellants to the Tribunal’s reasoning about the application of the criteria in Sch 5A. Despite that, the Minister does not submit, appropriately in my view, that the jurisdictional error complained of was, because of the Tribunal’s reasoning in relation to the Sch 5A criteria in the appellants’ situation, incapable of affecting the outcome of the review.

104        Indeed, the Tribunal’s own reasons make it clear that it had concerns about the further material supplied by the appellants, which it recognised could well have been addressed by the appellants, in particular the first appellant, had she attended the hearing. The Tribunal recognised this in several places in its reasons, and I extract two as examples, since different expressions were used. First, at [50], the Tribunal stated:

The Tribunal has considered the documents relating to the deposits held with the Punjab National Bank for the period of 1 January 2009 until November 2012 in the name of Mohinder Kaur. The affidavit provided by Mohinder Kaur states that she is the wife of Dulla Ram and that the applicant is her granddaughter. The applicant also provided identity cards for Shingara Ram and Mohinder Kaur, which noted that Shingara Ram and Mohinder Kaur were related to Dulla Ram. Of concern is that the identity card for Shingara Ram issued in June 1995 indicated that Shingara Ram was 41 years of age as at 1 January 1994. This is inconsistent with the information on the Ration Card issued by the Punjab Government which states that as at November 1999 Shingara Ram was 53 years of age. The Tribunal had hoped to discuss this concern with the applicant at the second hearing but the applicant failed to attend. There is no other independent evidence before the Tribunal to substantiate the claim that Mohinder Kaur is her grandmother.

105        In another part of its reasons the Tribunal stated (at [53]):

The Tribunal has also considered the documents in relation to Jagtar Singh, including the letter from the Oriental Bank of Commerce indicating that he has an account with the bank and has held funds in that account since 7 February 2011. Firstly, the applicant has not provided evidence of her relationship with Mr Jagtar Singh. Secondly, the evidence provided indicates that the funds were held by Mr Jagtar Singh since February 2011. As the applicant did not appear before the Tribunal at the second hearing, the Tribunal was not able to discuss this concern with her. Accordingly, the Tribunal is not satisfied that the funds had been held in the account for at least six months immediately before the date of application, as required by paragraph (aa) of the definition of ‘funds from an acceptable source’.

106        The obvious inference, which I draw, is that the Tribunal recognised evidence from the first appellant at any further hearing was capable of affecting its decision on the review about whether the documentary material provided by the first appellant was satisfactory to it in respect of the financial capacity criteria. The criteria in cl 5A405(1) are not prescriptive about the kind of “evidence” an applicant might give to the Tribunal.

107        I infer from the Tribunal’s reasons that it was conscious that oral evidence could have addressed some of the concerns it identified — such as whether Mohinder Kaur is the first appellant’s grandmother. It would be wrong for a decision-maker to require documentary evidence in order to be satisfied of such a fact: the existence of a familial relationship is quite capable of being satisfied by oral evidence from one member of that relationship, depending on the decision-maker’s assessment of the veracity of the oral evidence given. The Tribunal’s reasons disclose in my opinion that it was alive to that option.

Legal unreasonableness

108        The discretion in s 362B(1) is of the kind which gives rise to the presumption that it is conditioned by a requirement that it be exercised in a way which is legally reasonable. There is no clear statutory qualification or contrary intention which would suggest otherwise: see generally Singh (2014) 139 ALD 50; [2014] FCAFC 1 at [43]. The Minister conceded this to be the case in his written submissions.

109        Of the two contexts in Li in which legal unreasonableness might arise (see Singh (2014) 139 ALD 50; [2014] FCAFC 1 at [44]), subject to what I say at [139] to [145] below, the present case is the second kind. That is, it is not one where there is an underlying jurisdictional error identified which also makes the decision legally unreasonable. Rather, it is one where the exercise of discretion itself, in its outcome, is said to be legally unreasonable.

110         In Singh, the Full Court identified two different analyses which might be applied in such a circumstance. If the repository of the power had given no reasons for the outcome, then the supervising court can only focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome, bearing in mind the constraints applicable to the role of a supervising court. If the repository of the power has given reasons, then it is the justification given in the reasons, and the intelligibility of the exercise of power as explained in the reasons, which the supervising court should examine, bearing in mind the constraints applicable to that task. Limiting the examination to the reasons given by the repository of the power is consistent with the approach taken to the role of reasons generally in assessing jurisdictional error: namely, that reasons enable a supervising court to see what the repository of the power herself or himself saw as relevant, irrelevant, or as her or his statutory task. In deciding whether there was an excess of jurisdiction, this is the perspective which is important, understanding why the power was exercised as it was: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] per Gleeson CJ. Where there are reasons given by a repository of the power, which are not sufficient to provide an intelligible justification, for a supervising court to engage in finding and applying facts and reaching its own conclusions about how and why, through a different reasoning process, the exercise of power could be justified is tantamount to a re-exercise of the power by the supervising court and in my opinion crosses the line, well established in Australian law, between a review of the exercise of a power and the exercise of it, as described by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38.

111        In the present case, the Tribunal gave no reasons for the exercise of power under s 362B, and the parties did not submit otherwise. The Minister submitted that no “adverse inference” can be drawn from the fact the Tribunal did not explain why it proceeded to make the decision on review, because s 368 did not require the Tribunal to set out its reasons for this decision. Reliance was placed on SZHSQ 155 FCR 159; [2006] FCA 1295 at [60]. The proposition that neither s 430 (in relation to the Refugee Review Tribunal, which was the subject matter of SZHSQ) nor s 368 (in relation to the Migration Review Tribunal) extend beyond an obligation to give reasons for the decision on review itself, rather than discretions exercised as part of the review, is well established. That proposition adds nothing to the legal questions raised in this case. Although the Tribunal may not have been obliged by the Act to give reasons, its failure to do so leaves the exercise of power unexplained so far as a reviewing Court is concerned. The absence of an explanation by the repository of the power means the supervising court must, as the Full Court observed in Singh, focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome, bearing in mind the constraints applicable to the role of a supervising court. There is no occasion for “adverse inferences” to be drawn, such language is a distraction from the court’s task.

112        Nor is there in my opinion any room for the kind of speculation in which the Minister engaged in his supplementary submissions about why the Tribunal proceeded as it did. The Minister submitted:

Further, there are other possible and acceptable explanations. For instance, the Tribunal might have reasoned that, given that the invitation to the second hearing was sent to the same nominated address to which the first invitation had been sent and received, and given that that address was not obviously incorrect, the appellants may have moved address without informing the Tribunal, and that it was not incumbent on it to reschedule the second hearing and utilise another method for inviting the appellants to that hearing in these circumstances. The Tribunal might have been fortified in that view having regard to the abundant opportunities (including multiple extensions of time) that the Tribunal had already afforded the appellants to provide evidence to satisfy the financial capacity criteria. If the Tribunal had made its decision to proceed for these reasons, its decision would have been legally reasonable: it would not have been an arbitrary or capricious; it would have fallen within the “area of decisional freedom”.

113        There is no basis in the evidence for this kind of speculation. As I have said at [110] above, in my opinion it also transgresses the line between judicial supervision and an exercise of power by the Court itself. The Tribunal itself identified none of the reasons proffered by the Minister. In these circumstances, characterising the opportunities the applicant had as “abundant” is a value judgment for the repository of the power in s 362B, on the occasion for its exercise, not for this Court.

114        The Minister relies on the following extract from the judgment of Gageler J in Li 249 CLR 332; [2013] HCA 18 at [105], which the Full Court in Singh (2014) 139 ALD 50; [2014] FCAFC 1 quoted at [44]:

“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”. 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”.

115        Read as a whole, the principal proposition his Honour endorses is that reasonableness is concerned with “justification, transparency and intelligibility within the decision-making process”. His Honour’s reference to “a range of possible, acceptable outcomes”, taken from the decision of the Supreme Court of Canada in Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47], is not made to encourage the kind of speculation about a repository’s reasons that is present in the Minister’s submissions. If anything, it seems directed to circumstances where the repository of the power has given reasons for the way the power was exercised and the Court is required to determine where, on the spectrum of what could be considered a reasonable exercise of power, the particular exercise for the reasons given falls. His Honour’s reference is designed to emphasise the limits of the supervisory function. Noting the stringency of the test for legal unreasonableness, his Honour went on to make the following finding (at [124]):

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.

116        The point of extracting his Honour’s conclusion in Li is not to suggest any direct application to the present case. Rather it is to highlight that the context of his Honour’s endorsement of the statement in Dunsmuir does not suggest that the assertion by a party of the existence of a range of “possible acceptable outcomes”, dependent on speculation on matters not mentioned in the repository’s own reasons, will inevitably defeat a conclusion of legal unreasonableness. The passages in Dunsmuir to which Gageler J referred occur, of course, in the very different context of Canadian law where, in assessing “reasonableness” as opposed to “correctness” Canadian courts apply a “differential standard”, giving “due consideration to the determination of decision makers”: Dunsmuir [2008] 1 SCR 190 at [49]. Under Canadian administrative law principles, where the reasonableness standard applies, it requires “deference”: Minister of Citizenship and Immigration v Khosa [2009] 1 SCR 339 at [59] per Binnie J for McLachlin CJ and Binnie, LeBel, Abella and Charron JJ.

117        Deference is not a term or concept which has found favour in Australia: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [40]-[48] per Gleeson CJ, Gummow, Kirby and Hayne JJ. In Enfield, the plurality recognised there will be circumstances in which particular weight should be afforded to the opinion of a tribunal, but characterised that as part of the basic principles of administrative law respecting the exercise of discretionary powers, rather than the product of any doctrine of deference: see Enfield 199 CLR 135; [2000] HCA 5 at [44]. Where, as with an allegation of legal unreasonableness, the question is whether a tribunal acted within its jurisdiction, this is a matter for independent assessment by the Court: Enfield 199 CLR 135; [2000] HCA 5 at [48]. The touchstone of that assessment may be described as the “justification, transparency and intelligibility” of the exercise of power, as it appears through consideration of the particular factual context and the reasons (if any) given by the repository of the power for the way in which the power was exercised.

118        Notwithstanding the differences in administrative law principles in this area between Australia and Canada, in Khosa [2009] 1 SCR 339 at [59], Binnie J described the approach of Canadian reviewing courts in terms which are not so dissimilar from the description given in Enfield. His Honour said:

Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”(Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome can fit comfortably within the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.

119        Binnie J went to emphasise (at [63]-[65]), by reference to Dunsmuir, the importance to the reviewing court of the reasons given by administrative tribunals for the decision made. It is in the reasons of a tribunal, his Honour said, that the “transparency, justification and intelligibility” for the decision and the exercise of power is to be found. Understood in that context, no support is to be gained from the Canadian authorities in general, nor from Gageler J’s confined reference to Dunsmuir, for the Minister’s proposition that, in the absence of reasons from a tribunal for the way in which a power was exercised, a reviewing Court might engage in speculation unfounded in evidence about why a power might have been exercised as it was. Where there are no reasons, as the Full Court in Singh said, a reviewing court is left with the outcome of the exercise of power, to be assessed in the factual and legal context as disclosed by the evidence.

120        In the present case, the effect of s 379C(4) is not part of that context. Rather, its effect is the precondition to the exercise of power in s 362B arising. It says nothing, in my opinion, about how the power might be exercised in a given case. That is a question for the Tribunal in the factual circumstances as they are presented, and the legal reasonableness of the Tribunal’s answer to that question is a matter for a supervising court.

121        The Minister’s submissions relied heavily on the operation of s 379A(4), read with s 379C(4), in the circumstances of the second hearing invitation. He submitted that, because of the deeming effect of that provision, a “legal fact” existed: namely, that the appellants received the second hearing invitation. It was not possible, the Minister’s submissions continued, in the face of such a legal fact, for the Tribunal’s exercise of discretion to be characterised as legally unreasonable. Put another way, as I understood the submissions, the “legal fact” for which s 379C(4) provided meant that there was an intelligible justification for the Tribunal’s exercise of discretion.

122        The term “legal fact” is unhelpful in this analysis, and places a gloss on the operation of s 379A, read with s 379C(4). The purpose of s 379C is at least twofold. First to remove ambiguities surrounding receipt by applicants for review of communications from the Tribunal, so that time limits imposed by the Act (see for example s 368A) or indeed those imposed administratively by the Tribunal (for example, pursuant to s 359) operate with certainty. The certainty chosen by the legislature is deemed rather than actual receipt. Second, and related to the first purpose, to give provisions such as s 362B an operation which is certain. It was implicit if not express in the Minister’s submissions, and should be accepted, that where the precondition in s 362B speaks of an applicant being “invited under s 360 to appear before the Tribunal”, that should be construed as the giving of an invitation under s 360 which is taken to have been received by operation of s 379C. The “deemed receipt” provisions operate to allow the discretion in s 362B to arise for consideration by the Tribunal after a defined period of time: see Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [33] (dealing with s 441A, the corresponding provision with respect to the Refugee Review Tribunal).

123        They do not however, govern or determine the outcome of the consideration by the Tribunal of how to exercise that discretion. This aspect of the Minister’s submission should be rejected. The effect of the Minister’s submissions is to immunise the exercise of discretion under s 362B and to permit the discretion to be exercised outside the boundaries set by the High Court in Li. Express or implicit knowledge by the Tribunal that, by reason of the operation of s 379C, an applicant is deemed to have received a hearing invitation, provides the occasion for the exercise of discretion under s 362B but does not determine how the discretion should be exercised. How the discretion should be exercised will fall to be decided by the Tribunal, in accordance with its functions under Part 5 and taking into account matters such as the facts and circumstances of the individual review applicant, the course of the particular review and what is at stake for the review applicant.

124        There is nothing inconsistent between this approach and the observations of Greenwood J in NBBL 152 FCR 592; [2006] FCA 1045 at [20]-[21]. His Honour there expressly recognised the requirement for the discretion to be exercised reasonably. What his Honour said (at [21]), with which I respectfully agree, is that “the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power” (my emphasis). Reeves J in SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [22] expressed himself in almost identical terms and, again, there is no inconsistency between his Honour’s observations and the approach which, in my opinion, Li, Singh and the principles and authorities to which they refer require to be taken to the exercise of the discretion in s 362B on an individual occasion.

125        The Minister also submitted that the Tribunal’s exercise of discretion could not be characterised as legally unreasonable in circumstances where the authorities established it was under no obligation to make inquiries. The Minister relied in particular on the Full Court’s decision in SZFHC 150 FCR 439; [2006] FCAFC 73 at [39]. The Minister also pointed, in his supplementary written submissions, to a number of cases including Full Court cases, where the deemed receipt provisions (such as s 379C) had been held to “bind the courts in the disposition of any application for judicial review or appeal”.

126        I deal with SZFHC in more detail below. As for the other authorities relied on by the Minister, the propositions for which he contends are too broadly stated and the circumstances of those authorities do not support propositions of that breadth.

127        The Minister refers to the statement of the Full Court in SBSC [2006] FCAFC 77 at [15]-[17] as authority for the proposition that the fact a hearing invitation is returned to the Tribunal is of “no legal relevance”. That is not what those passages say at all. Rather, at [16], what is said by the Full Court to be of no “legal relevance” is the statement by the appellant in that case that he was unaware of the Refugee Review Tribunal hearing. It is clear the Full Court is referring to the disconformity between the operation of provisions such as ss 379A and 379C as setting out the Tribunal’s statutory obligations and the effect of compliance with them, and the lay understanding of an applicant about the relevance of the fact that he did not know about the scheduled hearing.

128        The next series of authorities relied on by the Minister for the proposition that unawareness about a scheduled hearing “cannot ‘displace the conclusion’ that the [hearing] invitation was given to the visa applicant”. These cases are VNAA 136 FCR 407; [2004] FCAFC 134 at [15] per Sundberg and Hely JJ; NADK of 2002 [2002] FCAFC 184 at [16]; SZDPB [2006] FCAFC 110 at [17]-[18]; MZXRE (2009) 176 FCR 552; [2009] FCAFC 82 at [77]-[78]. There is no different contention by the first appellant in this case. She does not contend, as the applicants in the cases to which the Minister refers contended, that notwithstanding compliance with the equivalents of ss 379A and 379C, the Act nevertheless imposed a positive obligation on the Tribunal to satisfy itself the invitation had come to the attention of the review applicant.

129        Third, the Minister relies on the Full Court decision of Kim [2006] FCAFC 64. This is a nine-paragraph decision where the appellant was unrepresented and clearly no arguments whatsoever were developed on her behalf. All the emphatic language of the Full Court means is that the deeming effect of provisions such as s 379C(4) replaces a factual inquiry whether a document was in fact received by a review applicant. That is all the words “cannot inquire” as used by the Full Court mean, in my respectful opinion.

130        SZFHC 150 FCR 439; [2006] FCAFC 73 concerned the review of a decision of the Refugee Review Tribunal, where the Tribunal had proceeded to determine the applicant’s review under s 426A of the Act after having invited the applicant to a hearing, having had no response to the hearing invitation and the applicant having not appeared at the appointed time for the hearing. The Court’s reasons disclose that letters were sent both to the applicant’s migration agent and directly to the applicant at his home address, and that it was not possible to ascertain on the evidence which letter was returned to the Tribunal, although the Court inferred it might have been the one sent to the applicant’s residential address. There was, on the facts, a “past history” as the Court described it, of letters to the applicant’s residential address being returned.

131        As the Full Court’s reasons disclose, the central issue on the appeal was the content and scope of the Tribunal’s obligation under the then s 425 of the Act (the equivalent of s 360), and the role that the invitation provisions in s 425A (the equivalent of s 360A) played in determining that content and scope. The Full Court rejected the review applicant’s submissions that s 425 required the Tribunal to give an applicant a “real” opportunity to appear and that this obligation compelled the Tribunal to take further steps to contact the review applicant, in addition to giving notice under s 425A. The review applicant relied on an earlier decision of Hely J in Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243; [1999] FCA 1041 at [30], which the Full Court distinguished in part because of a change in language in s 425, from an obligation imposed on the Tribunal to give the applicant an opportunity to appear to an obligation to give an applicant an invitation to appear. The Full Court held at [39]:

The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

132        Some care must be taken, in my respectful opinion, not to overreach the propositions for which SZFHC can be taken to stand. The High Court and Full Court of this Court have held now on several occasions that, on the current statutory language involving an invitation to appear, both ss 360 and 425 impose on the Tribunal an obligation to give an applicant a meaningful opportunity to appear and present evidence and arguments in support of her or his review application: see, eg, Li 249 CLR 332; [2013] HCA 18 at [61] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38] per Kenny and Lander JJ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]; Minister for Immigration and Multiculural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37]. As the plurality in the High Court pointed out in Li (see [143] below), there is a connection between the content of the obligation in s 360 and the reasonable exercise of discretions conferred by Part 5 of the Act on the Tribunal. The manner in which the Tribunal exercises the discretions conferred upon it (such as those in s 362B and s 363(1)(b)) must not frustrate the purpose of the obligation in s 360.

133        There is, however, no difficulty in accepting the proposition which also emerges from SZFHC that, having complied with its obligations under s 425A (or, here, s 360A) there cannot be discerned from ss 425 and 425A read together (or, here, ss 360 and 360A read together) any freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to search its records, or those of the Department, to discover if there might be another way of communicating with the applicant. To imply such an obligation would be to constrain the discretions in s 362B and s 426A in a way the legislative scheme does not suggest is justified.

134        The reconciliation of that proposition with the proposition that the discretions in s 362B (and s 426A) must be exercised reasonably is, as both Li and Singh recognise, not found in some checklist approach, but in a consideration of the factual circumstances in which the particular discretion was exercised in respect of a particular review and particular review applicant.

135        I see nothing in the Full Court decisions to which the Minister refers which compels the Court to find that the exercise of discretion under s 362B can never be legally unreasonable if a hearing invitation has been sent in accordance with s 379A(4) and deemed by s 379C(4) to have been received. Such a proposition would also be inconsistent in my opinion with the approach taken by the High Court in Li, and the concession made by the Minister in the present case that the s 362B discretion is conditioned by a requirement that it be exercised reasonably. This proposition is also inconsistent with the terms of s 362B itself, especially s 362B(2), which expressly contemplates there will be matters the Tribunal may take account of to reschedule a hearing. Obviously one such matter might be the fact that a review applicant did not receive a hearing invitation. Indeed, as I have found on the facts of this case, it seems highly probable that, if the Tribunal’s attention had been drawn to the fact the first appellant did not receive the invitation, given the history of the review to date, the Tribunal is likely to have rescheduled the hearing.

136         The Minister sought to persuade the Court of an analogy between the present case and one in which Spender J made the following observations:

It is unfortunate that the letter was addressed as it was, with the consequence that the appellant did not attend at the Tribunal hearing and that the case was decided without the Tribunal having the opportunity and benefit of hearing from the appellant.

However, the reason for that failure lies squarely at the feet of the appellant …. There was no fault in the Tribunal in complying with its obligations to advise her of the hearing and invite her to attend. The reason for non-attendance was that the invitation had been sent to the address that the applicant had indicated was the address to which such documents should be sent.

(SZMDH v Minister for Immigration and Citizenship [2008] FCA 1852 at [25]-[26].)

137        In the present case, it is distracting to speak of “fault” or “blame”. The evidence shows that the Tribunal successfully communicated with the first appellant by registered post before and after the second hearing invitation letter on the basis of the postal address she had given, in the way she had given it. There is no “fault” which attaches to the first appellant, nor is there any which attaches to the Tribunal. The question is whether a Tribunal acting reasonably, in the particular factual context of this review, could have proceeded to determine the review without any attempt to contact the first appellant.

Conclusion on legal unreasonableness

138        The Tribunal had taken almost two years to come to the point of even considering the first appellant’s review application. The evidence shows, I find, that the Tribunal itself had no particular sense of urgency about the review, nor objectively was there any basis for such urgency. After the first hearing, appropriately making some allowance for the fact she was not represented, the Tribunal’s officers and the Tribunal member allowed the first appellant some time to gather the necessary documents. There is nothing in the Tribunal’s reasons nor in the evidence about the course of the review up to the time of decision which could give rise to an inference that the Tribunal thought the first appellant was not being honest, or was incapable of providing the necessary documentation. The Tribunal’s conduct is not to be characterised as “indulgences” or the like. It was the proper discharge of the Tribunal’s merits review function, in circumstances where quite complex financial documents had to be obtained from institutions in India, translated and notarised.

139        During the five months or so when the Tribunal and the first appellant engaged in a series of communications, all communications were by telephone and email aside from the two hearing invitations. On at least two occasions, the Tribunal officers actively followed up with the first appellant by telephone when the Tribunal had sent her an email. The first appellant was responsive, and indeed her communications disclosed a level of anxiety to ensure that she was being kept informed, that she supplied the information the Tribunal required and did all that was asked of her.

140        In those circumstances, her non-response to the second hearing invitation and then two weeks later her failure to attend the hearing was, given her past behaviour, out of character. So much should have been obvious to the Tribunal officers and to the Tribunal member. A tribunal acting fairly, according to substantial justice and the merits of this applicant’s case, would have taken some step to find out what had happened. A tribunal acting fairly, according to substantial justice and the merits of this applicant’s case, would have done what this Tribunal, and its officers, had been doing with this review applicant for the past five months: telephoned or emailed her. Subsequent events, as disclosed by the evidence, demonstrate that, when those methods of communication were used with the first appellant after the Tribunal decision, she was responsive in a timely way. There is no basis to conclude she would have been otherwise if telephoned or emailed either by the Tribunal officer who filled in the “no response” to hearing invitation form, or by the Tribunal member herself. In keeping with the conduct to that point, a simple telephone call or email after the “no response” form was filled in would, I find, most probably have resulted in the first appellant attending the second hearing.

141        The Tribunal’s exercise of power under s 362B(1) was legally unreasonable and therefore exceeded its jurisdiction. It was, as I observed earlier, inexplicable in the circumstances. Its decision on review should be set aside.

Denial of procedural fairness

142        Even if I had not concluded the Tribunal’s exercise of power under s 362B was legally unreasonable, I am satisfied there was a denial of procedural fairness by the Tribunal to the first appellant. Having decided that it needed to hear again from the first appellant, having recognised she may have been able to explain matters which remained unclear to the Tribunal and having recognised that she could have provided evidence to persuade the Tribunal of matters over which it still had concerns, for the Tribunal to make a decision on the review without making any attempt whatsoever to get in touch with the first appellant by phone or email when she did not respond to the hearing invitation or appear on 20 February 2013 was a failure to give her a reasonable opportunity to present her case: cf Li 249 CLR 332; [2013] HCA 18 at [19]-[21] per French CJ.

Section 360

143        Another approach is to characterise the Tribunal’s failure as a failure to fulfil its obligations under s 360 of the Act, by issuing the hearing invitation and then not following up at all when there was no response and no appearance by the first appellant. In Li 249 CLR 332; [2013] HCA 18 at [51]-[62], Hayne, Kiefel and Bell JJ considered the scope and content of the obligation under s 360, read with (in particular) s 357A(3) of the Act. Their Honours said (at [58]-[61]):

In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.

Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an in capacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

144        The Minister’s submissions sought to characterise the obligation in s 360 as a “once only” obligation. At the broad level at which it was put, I reject that submission. For the reasons I have outlined above, the nature of the Tribunal’s statutory task and the powers it is given in Part 5 involve the degree of flexibility necessary to ensure it can reach the correct or preferable decision on the review, on the basis of the material before it.

145        The obligation in s 360 may not, in a particular case, be discharged with one hearing. All will depend on what are the “issues arising in relation to the decision under review”. It may be that because of a change of circumstances, the issues change after the Tribunal has had a s 360 hearing. It may be that due to what occurs at a s 360 hearing, further information is obtained by the applicant, or the Tribunal, and new issues arise which have not been the subject of evidence or argument.

146        The Minister sought to address the possibility that a second hearing might be required by submitting that s 360 should be construed as involving a discretion reposed in the Tribunal to conduct a further hearing. It is not in my opinion possible to locate any such discretion in the statutory language used, when read in context. The provision imposes a statutory duty, which must be performed in certain circumstances. Its purpose is to ensure that an applicant has a meaningful opportunity to supply the Tribunal with the information the applicant considers supports the merits of the review, and to make the arguments the applicant considers should be made to support an outcome in the applicant’s favour. In both cases, the nature and scope of that opportunity will turn on what are the “issues arising in relation to the decision under review”. Subsection (2) indicates the circumstances Parliament has nominated where the duty does not exist. Aside from those circumstances, there is no reason to construe subs (1) as only requiring one hearing invitation to satisfy the duty imposed in all cases. In a given case, the duty may only be fulfilled by a second hearing invitation.

147        The following passage from Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30 at [51] supports this construction, in the sense that it emphasises the identification of the issues arising in a review is fact dependent:

Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China.

148        The characterisations referred to by French CJ and by the plurality in Li, as alternatives to legal unreasonableness, highlight the possibility of conceptual overlap between them in a given factual context. That the Tribunal’s conduct in exercising its discretion under s 362B to finalise the review, not knowing if the first appellant was in fact available to appear, give evidence and make submissions is susceptible to more than one characterisation, but each of which leads to a conclusion of jurisdictional error confirms, in my opinion, that the Tribunal’s decision must be set aside.

CONCLUSION

149        The Federal Circuit Court erred in not finding that the Tribunal’s decision was affected by jurisdictional error. Its orders must be set aside. The Tribunal’s decision must also be set aside and the matter remitted to the Tribunal for further determination according to law.

150        The first appellant was not legally represented until after the hearing of the appeal. Solicitors and counsel then made written submissions on her behalf. There is a question whether she should be entitled to any order for costs in those circumstances. In the absence of proposed orders as to costs being filed by consent within seven days, the parties have leave to file written submissions limited to two pages on the question of costs on or before Thursday 11 September 2014.

Associate:

Dated:    28 August 2014