FEDERAL COURT OF AUSTRALIA

Dhaliwal v Minister for Home Affairs [2020] FCA 508

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    The appellant, Gurmit Singh Dhaliwal, is a citizen of India. He arrived in Australia in July 2008 as a dependent of his ex-wife who held a student visa. He met his current wife in Australia in October 2010 and they married in November 2013. On 9 December 2013, sponsored by his new wife, he applied for a Partner (Temporary) (Class UK) visa (Partner visa). To qualify for a Partner visa, the Minister must be satisfied that the criteria in subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth) are satisfied. Since Mr Dhaliwal did not hold a substantive visa at the time of his application, he needed to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria: sch 2 cl 820.211(2)(d)(ii). In order to satisfy criterion 3001, the application for the visa had to be made within 28 days after the last day Mr Dhaliwal held a substantive visa, a criterion Mr Dhaliwal was unable to satisfy.

2    The visa application was first considered by a delegate of the Minister who refused to grant the visa.

3    The reasons that Mr Dhaliwal offered at that time were that his parents threatened to disown him because of his marriage to his sponsor and he feared for his life if he returned to India due to threats from his ex-wife’s family. The delegate was not satisfied that these were “compelling reasons” for not applying the Schedule 3 criteria.

4    Mr Dhaliwal applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision. Mr Dhaliwal applied to the Federal Circuit Court for judicial review and, by consent, the matter was remitted to the Tribunal after the Minister conceded that the Tribunal fell into jurisdictional error by construing cl 820.211(2)(d)(ii) as confining the decision-maker’s consideration of compelling reasons to the circumstances existing at the time of the application.

5    Mr Dhaliwal urged on the Tribunal a number of reasons, including hardship he claimed would be visited upon his wife and sponsor, Tracey Casorzo, if he were required to temporarily leave Australia to lodge a Partner visa application from India. Ms Casorzo suffers from a number of medical conditions. Mr Dhaliwal claimed that she required a great deal of care and depended upon him to supply it. But the second Tribunal was not satisfied that any or all of the reasons Mr Dhaliwal proffered provided a compelling reason not to apply the Schedule 3 criteria.

6    Mr Dhaliwal returned to the Federal Circuit Court. The court’s jurisdiction was limited. The effect of s 474 of the Migration Act 1958 (Cth) is that relief was only available if Mr Dhaliwal was able to demonstrate that the Tribunal’s decision was infected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Mr Dhaliwal’s complaint was that the Tribunal’s decision not to adjourn to take oral evidence from Ms Casorzo or to require the Secretary of the Minister’s Department to arrange for her to be medically examined or otherwise investigated was legally unreasonable and involved a denial of procedural fairness. The primary judge dismissed the application.

7    For the following reasons the appeal must also be dismissed.

The application to the Tribunal

8    Both the application in the court below and the appeal deal with a discrete aspect of the Tribunal’s decision and decision-making process. In these circumstances, it is unnecessary to refer at length to the Tribunal’s decision or its reasons. It is sufficient for present purposes to note the following matters.

9    Mr Dhaliwal’s migration agent, Gursharan Singh, lodged with the Tribunal a request from Mr Dhaliwal, dated 23 February 2016, for “waiver of Sch 3 due to compelling reasons-Medical condition of wife”, who, he pointed out, was an Australian citizen. In the request, Mr Dhaliwal stated that Ms Casorzo was suffering from severe rheumatoid arthritis, required “a lot of care” and was “not in a position to drive or look after herself”. He also said that neither Ms Casorzo’s parents nor her brothers were in a position to care for her “due to medical and other reasons”.

10    On 26 August 2016, a further invitation was extended to Mr Dhaliwal to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. In the letter in which the invitation was made, signed by Shirley Chiu on behalf of the Registrar, the Tribunal informed Mr Dhaliwal that the member might want to take evidence from Ms Casorzo and asked him to arrange for her to attend the hearing. On 19 September 2016, Mr Singh sent an email to the Tribunal. The email reads:

Please find enclosed attached response to hearing and medical record of Tracey Casorzo showing sponsoring applicant is suffering from significant deterioration in memory. Due to medical condition, we request the member that Tracy (sic) be excused from giving evidence.

We will be sending more documents in regards to medical record in another email.

(Emphasis added.)

11    The attached response to the hearing invitation indicated that Mr Dhaliwal and Mr Singh would be attending the hearing. The form contained a statement that the Tribunal “may wish to take evidence from Ms…Casorzo” and then asked whether Ms Casorzo would be attending in person. In answer to that question Mr Dhaliwal ticked the “no” box.

12    The attached “medical record” consisted of:

(1)    one page of a letter dated 31 August 2015 referring Ms Casorzo to a rheumatologist for an opinion and management of her rheumatoid arthritis in which the undisclosed author noted that Ms Casorzo had had “a significant deterioration in memory” over the previous one to two weeks and queried whether “there could be a possible cerebral vasculitis component”;

(2)    one page of a discharge summary from Westmead Hospital recording that Ms Casorzo had undergone an endoscopy and had been diagnosed with an hepatic cyst on 13 July 2016; and

(3)    a letter from a GP dated 6 September 2016 informing the reader that Ms Casorzo underwent major surgery two months earlier, was still recovering, would be “unable to do her physical training for a year”, and needed “about a year to fully recover and to start her normal life”.

13    A case note on the Tribunal file indicates that on 21 September 2016 Ms Chiu contacted Mr Singh in response to his email and informed him that whether “the sponsor” attended the hearing was a matter for her and Mr Dhaliwal. Ms Chiu noted that “[t]he rep referred to [the sponsor’s] medical conditions, including memory issues, and on medication” and her response: that “they [could] provide any submissions they wish the Member to consider”. Further, Ms Chiu noted that she informed “the rep” that if the sponsor was unable to do so in person she could do so by telephone, in which case they would need to provide the Tribunal with a contact number so that the Tribunal could contact her during the hearing.

14    The following day Mr Singh sent another email to the Tribunal attaching a letter from the GP of the same date, stating that Ms Casorzo had undergone a liver tumour resection with cholecystectomy in July and had been diagnosed with rheumatoid arthritis the previous year. The GP stated that the arthritis “flares up on and off” and that, when it flares up, Ms Casorzo suffers from “joints pain and swelling”. She added that the treatment was “ongoing with regular medications with frequent specialist visits”. No mention was made of any memory problems or any need for care.

15    On 26 September 2016 Mr Singh submitted to the Tribunal a signed statement from Mr Dhaliwal in which he said that his wife was having “multiple health issues”; “significant care” was required; “mainly” he was “the one assisting [his] wife on [a] daily basis”, although he received some “stop gap (sic)” help from her mother and her friend; and that his wife intends to cease work once he is granted “work rights as she is not in a position to work and [it’s] extremely hard on her to continue to work due to her medical condition”. He also stated (without alteration):

9.    After her operation in July 2016, I noticed my wife is having memory loss issue.

 10.    Under such circumstances I cannot trust her to have her medicine by herself.

11.    Even when she is at work, I make sure I handover medicine to her colleague to ensure that my wife is taking medicine properly.

12.    Due to her memory loss, she is not in a position to come and give evidence in AAT and I would request the member not to contact my wife due to her medical condition, however if member is not willing to consider my request, member may call her at her mobile phone no …

16    On 27 September 2016, Mr Singh emailed the Tribunal again, attaching a very brief statement from Mr Dhaliwal’s mother-in-law, Ms Vera Pinto, and a revised response to the hearing invitation requesting that oral evidence be taken from Ms Pinto but importantly, not requesting that oral evidence be taken from Ms Casorzo. In her statement Ms Pinto said that her daughter was “having multiple health issues and need[ed] a lot of care”, that “[m]ainly her husband support[ed] [her] daughter”, and that she helped as and when required, but that she could not care for her on a full-time basis due to her age and work commitments.

17    Apart from the reference in the August 2015 referral letter to a significant deterioration in Ms Casorzo’s memory over the previous one to two weeks, no medical evidence was submitted to the Tribunal at any time to suggest that Ms Casorzo had any continuing problems with her memory or that she required any care, let alone full-time care, or was unable to work because of her medical conditions. No specialists’ reports were provided to the Tribunal.

The Tribunal hearing

18    The hearing took place on 5 October 2016. It began at 9.11am and concluded at 11.43am.

19    Mr Dhaliwal appeared before the Tribunal, represented by Mr Singh. The Tribunal questioned Mr Dhaliwal and reviewed the documentary evidence. According to the Tribunal’s decision record, amongst other things, Mr Dhaliwal informed the Tribunal that Ms Casorzo works as a social worker providing care to disabled people in group homes and that, following her liver surgery in July 2016, she had resumed full-time work. While he gave evidence that Ms Casorzo relied on him to accompany her to her medical appointments so that he could understand what the doctor said to her about her medication and other treatment needs, he was unable to tell the Tribunal what medication she was currently taking.

20    The Tribunal also took evidence over the telephone from Ms Pinto. Ms Casorzo did not attend the hearing. In its decision record, the Tribunal indicated that it had tried to contact her by making three calls to her mobile phone, all of which went through to voicemail, and two to her landline, which proved to be disconnected.

21    When Mr Dhaliwal was asked by the Tribunal what compelling reasons there were not to apply the Schedule 3 criteria, he apparently replied that “the main reason” was his wife’s health problems and her reliance on the care and support she receives from him. He told the Tribunal that she had many serious health problems, takes a lot of medication, has difficulty remembering what medication she needs to take, and relies on him to remind her when to take it. It appears from the decision record, which in the absence of a transcript or recording of the proceeding is the only record before the Court of what took place at the hearing, that the Tribunal questioned Mr Dhaliwal at length about these matters.

After the Tribunal hearing but before the decision

22    After the evidence was taken, Mr Dhaliwal’s migration agent requested extra time to take instructions and seek further medical evidence. The Tribunal gave Mr Dhaliwal another two weeks to provide any further arguments, submissions or documentary evidence.

23    On 17 October 2016 Mr Singh sent an email to the Tribunal, addressed to the member, in the following terms:

On the day of hearing, after Mr Dhaliwal left for hearing, sponsoring applicant become (sic) sick and had to book appointment and see the doctor.

Please find attached

1.    Statement by the wife of the applicant (sponsoring applicant)

2.    Evidence sponsoring applicant became unwell and went to doctor.

3.    Evidence that sponsoring applicant tried to revert [return?] call of AAT but could not get through

Thank you for considering the above.

24    Attached to the email were a statement from Ms Casorzo, a booking receipt indicating that at 8.20am on the day of the Tribunal hearing she had made an appointment to see a GP at 11.10am, a medical certificate from the doctor stating that she was unfit for work on the day of the hearing, and a mobile phone call log. The call log showed that calls had been made to the Tribunal at 11.18am and 11.29am allegedly from Ms Casorzo’s mobile phone. Apart from the medical certificate, no further medical evidence was submitted to the Tribunal.

25    The statement from Ms Casorzo was brief. Importantly, it said nothing to suggest that she had any difficulties with her memory or that she was reliant on her husband for any support. It simply read (without alteration):

1.    My name is Tracey Cindy Casorzo.

2.    I am wife of the applicant Mr Gurmit Singh DHALIWAL

3.    My husband fallows doctors advise by the book.

4.    However I do bend the advise if I can.

5.    My husband is bit protective of me and is always worried about me.

6.    I went overseas 2 times recently.

7.    My husband was not aware about my visit to New Zealand.

8.    In May 2016, my husband went to Perth for 2 weeks, leaving me in the care of my mother and my friend.

9.    My friend and I left to have holiday in New Zealand the next day.

10.    I came back before my husband came back.

11.    My second visit was not disclosed to my husband as he will be upset.

12.    On the day of hearing, I was not well and was left in the company of my friend.

13.    My health detreated and I had to go to the doctor immediately.

Thank you for considering the above.

If you need more information in this matter, please feel free to email my agent Mr Gursharan Singh at ....

The Tribunal’s decision

26    In its decision record, the Tribunal made a number of adverse findings about Mr Dhaliwal’s credibility. In short, it considered him to be an unreliable witness. It stated (without alteration):

The applicant’s oral evidence during the hearing was at times inconsistent with information he has previously provided the Department and also in relation to other oral evidence he gave during the hearing. In his visa application the applicant stated he met the sponsor in December 2012 and they committed to an exclusive relationship with each other in September 2013, before marrying and started to live together in November 2013, whereas, during the hearing said he met the sponsor in October 2010 and that they started living together in 2012. At another point in the hearing the applicant gave evidence the sponsor relies upon him to attend her medical consultations with her so that he can explain to her what her doctors tell her about changes to her medication and other aspects of her treatment. He said this was necessary due to the sponsor’s memory problem. At a further point in the hearing the applicant made the somewhat contradictory statement that he does not talk to the sponsor’s doctors as he is scared his poor grasp of the English language could cause him to not understand what they have said. He said the sponsor or her mother talk to her doctor’s and his role is to note what medication she needs to take and when she needs to take it. The applicant was however unable to tell the Tribunal what medication the sponsor is currently taking, beyond commenting that some of her pills are for pain relief. Due to these and other inconsistencies in the applicant's evidence, the Tribunal was not satisfied it could rely on the evidence provided by the applicant where it was not corroborated by other documentary evidence.

27    The Tribunal discussed the medical records concerning Ms Casorzo’s condition. It noted in particular that she had been diagnosed with rheumatoid arthritis, had “multi joint pain”, and had undergone a liver tumour resection with cholecystectomy four months before the hearing. It mentioned the GP’s referral letter to the rheumatologist in August the previous year. But the Tribunal observed that it had no documentary evidence from the GP, a rheumatologist, or other medical specialists or health professionals “showing further assessment of the sponsor’s rheumatoid arthritis condition and memory difficulty”. The Tribunal referred to the recent “brief report” from the GP in September 2016 noting its contents.

28    The Tribunal then discussed the deficiencies in the evidence:

There is no medical evidence before the Tribunal that provides an assessment of functional limitations on the sponsor’s activities of daily living, or of any difficulties she may experience in her vocational role as a residential care worker. There is no assessment by a medical specialist, relevant health or rehabilitation professional identifying the sponsor’s specific care and support needs. There is no reference to the sponsor suffering from, or requiring treatment for anxiety or any related mental health condition in the medical evidence currently before the Tribunal. The Tribunal has not had the benefit of oral evidence from the sponsor in relation to any care and support needs she has as a consequence of her health conditions. The written statement from the sponsor which the Tribunal received on 17 October 2016, does not refer to her specific care and support needs. She does state the applicant follows the doctor’s advice ‘by the book’, whereas she ‘bends the advice if she can’. The sponsor proceeds to state she went overseas twice in 2016, including a trip she made to New Zealand with a friend in May 2016, which she did not tell the applicant about.

(Original emphasis.)

29    The Tribunal acknowledged the concerns Mr Dhaliwal had expressed about his wife’s ability to take medication because of “memory or motivation problems on her part”. At the same time, however, it noted evidence given by Ms Pinto that they use a dosette box when required and, as the Tribunal put it, this was “an effective method to ensure the sponsor takes her medication correctly”. Furthermore, the Tribunal noted that Ms Casorzo had resumed full-time work in a residential care role. While it accepted that her ability to work “could be intermittently impacted” by her rheumatoid arthritis, it was satisfied that her cognitive function was not impaired “such that she [was] unable to function in [a] role where she is providing direct care, supervision and support to disabled children and adults”.

30    On the basis of the evidence before it, the Tribunal said that it was not satisfied that Ms Casorzo’s health conditions and any care needs arising from them provided a compelling reason not to apply the Schedule 3 criteria. It then proceeded to consider the other reasons that Mr Dhaliwal had propounded, but concluded that, whether taken individually or collectively, they did not provide a compelling reason not to apply those criteria either.

The application in the court below

31    The application in the court below (as amended) contained one ground of review, albeit alleging two discrete jurisdictional errors (without alteration):

The Tribunal purported decision is vitiated by legal unreasonableness. The applicant denied the applicant procedural fairness.

Particulars

i)    It is clear that the applicant’s wife (who was his sponsor) (“the sponsor”) wanted to give oral evidence to the Tribunal.

ii)    It is evident from the Tribunal’s reasons that there were matters that the Tribunal would have raised with the sponsor if the Tribunal had taken oral evidence from the sponsor. In its reasons, the Tribunal allowed for the possibility that such evidence from the sponsor may have satisfied the Tribunal that “the sponsor’s health conditions and any needs accruing from these health conditions provide a compelling reason not to apply the Schedule 3 criteria”. (See Tribunal’s Decision Record at [39] to [40], [59], [61], [63].)

iii)    It is also evident from the Tribunal’s reasons that there were medical and other health and rehabilitation assessments that would have been relevant to the Tribunal’s task. (see Tribunal’s Decision Record at [59] to [63].)

iv)    The Tribunal’s function is inquisitorial. Its statutory task is to arrive at the correct or preferable decision in the case before it based on the evidence and arguments placed before the Tribunal and any other relevant information which the Tribunal itself obtains.

v)    The Tribunal is vested with discretionary jurisdiction including:

a)    to adjourn the hearing to obtain further evidence from the sponsor (s.363(1)(b); s.361 of the Migration Act)

b)    to require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination (s.363(1)(d) of the Migration Act).

vi)    In the outcome, the Tribunal’s failure to exercise its discretion to adjourn to obtain oral evidence from the sponsor was legally unreasonable.

vii)    In the outcome, the Tribunal’s failure to exercise its discretion to require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation was legally unreasonable.

viii)    In all the circumstances, the Tribunal’s purported invitation to the applicant under s.360 off the Migration Act did not, in fact, provide the applicant with a proper, genuine and realistic opportunity to present the applicant’s case. The Tribunal denied the applicant procedural fairness.

(Original emphasis.)

32    In other words, Mr Dhaliwal alleged the Tribunal erred in two respects. The first was by failing to exercise its discretion to adjourn the hearing to obtain oral evidence from Ms Casorzo, when she wanted to testify; there were matters the Tribunal would have raised with her had she testified; and her evidence might have provided a compelling reason for the Tribunal not to apply the Schedule 3 criteria. The second was by failing to exercise its discretion to require the Secretary to arrange for such investigations or medical examinations as the Tribunal thought necessary. Mr Dhaliwal alleged that the failure to exercise its discretion in these ways was in each case legally unreasonable. He argued that it was clear from the Tribunal’s reasons that it might have come to a different determination if it had some or all of that evidence.

The reasons of the primary judge

33    The primary judge began by paraphrasing Mr Dhaliwal’s complaint:

Although the ground on which the applicant relies claims the Tribunal acted unreasonably, his actual claim is that the Tribunal failed to consider whether to exercise powers it had to obtain further information in circumstances where the occasions for the Tribunal considering whether to exercise those powers had arisen. The powers which the applicant claims the Tribunal came under a duty to consider exercising are those conferred by s.361(2), s.363(1)(b), and s.363(1)(d) of the Act; and the occasions which the applicant claims gave rise to an obligation by the Tribunal to consider whether to exercise its powers are the Tribunal’s unsuccessful attempts to contact the sponsor on the day of the hearing, the applicant’s representative providing to the Tribunal the sponsor’s statement on 17 October 2016, and when the Tribunal allowed for the possibility that the sponsor’s medical conditions and her needs having regard to those conditions may constitute compelling reasons for not applying the Schedule 3 criteria.

34    His Honour then observed that “the relevant question” was “whether, on any of the occasions on which the applicant relies, the Tribunal came under an obligation to consider whether it should adjourn the hearing or obtain further information, either from the sponsor, or from some other person, or to cause the Secretary to obtain such information”.

35    His Honour proceeded to discuss the principles governing the Tribunal’s obligation to review a decision of the Minister or his delegate, referring in particular to the nature of the inquisitorial role as discussed by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123; 259 ALR 429; 111 ALD 15, and then examined the three occasions on which Mr Dhaliwal claimed, so his Honour said, that the Tribunal had an obligation to obtain further information.

36    First, his Honour looked at whether “the Tribunal ought to have considered whether to adjourn the hearing for the purpose of enabling the sponsor to give oral evidence at a later time”. His Honour found that no such obligation arose because:

(1)    Mr Dhaliwal did not ask the Tribunal for an adjournment to hear from the sponsor;

(2)    the Tribunal gave Mr Dhaliwal time to provide a further statement from the sponsor and did so;

(3)    there was nothing in the material before the Tribunal to suggest that, if the sponsor had been contacted at a later time, she would have been in a position to give evidence about a critical fact and Mr Dhaliwal had not identified “what critical fact or facts the sponsor would have been in a position to give evidence [about]”; and

(4)    seeking further information from the sponsor could not be characterised as an “obvious inquiry”.

37    His Honour distinguished this case from Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508, upon which Mr Dhaliwal relied. In particular, he noted that Mr Dhaliwal was aware of, and attended, the hearing; that according to one of her written statements the sponsor was aware of the hearing date; that Mr Dhaliwal had had the opportunity to submit further material after the hearing; and that both he and the sponsor had taken advantage of that opportunity.

38    Second, his Honour examined whether the Tribunal came under an “obligation to consider whether to seek further information … when [Mr Dhaliwal] provided to the Tribunal on 17 October 2016 a statement from the sponsor”. His Honour found that there was no such obligation in this instance because it was not apparent that the sponsor intended to give any further information beyond what was contained in her statement. Further, his Honour found that Mr Dhaliwal had not identified the critical facts that the sponsor was in a position to give evidence about and, in any event, there was no obvious inquiry that could have been made, saying that:

I am not satisfied that any inquiry of the sponsor could be characterised as an obvious inquiry given, as I have already noted, the applicant provided a statement to the Tribunal in which he requested the Tribunal not contact the sponsor, the Tribunal had unsuccessfully attempted to contact the sponsor on the day of the hearing, and the evidence explaining her unavailability to be contacted on that day is unsatisfactory.

39    Third, his Honour determined whether the Tribunal was under an obligation to consider whether to seek further information when, according to Mr Dhaliwal, it allowed for the possibility that the “sponsor’s health conditions and any needs accruing from [those] health conditions provide[d] a compelling reason not to apply the Schedule 3 criteria”. His Honour did not accept that there was an obligation in these circumstances, finding that:

It was for the applicant to establish the grounds on which he relied for claiming there were compelling reasons for the Minister not to apply the Schedule 3 criteria; and to the extent those grounds relied on the sponsor’s medical conditions and the needs arising from such conditions, it was for the applicant to provide material in support of those matters. Further, seeking information by requesting the Secretary to arrange for a medical examination is incapable of being characterised as information that can be obtained by making an obvious inquiry.

40    The primary judge also rejected Mr Dhaliwal’s submission that the Tribunal had denied him procedural fairness because it failed to adjourn the hearing to take oral evidence from the sponsor. In particular, his Honour referred again to the failure of Mr Dhaliwal to request an adjournment, the Tribunal’s invitation to Mr Dhaliwal to provide further material after the hearing, and Mr Dhaliwal taking advantage of that opportunity by submitting further documentation to the Tribunal.

The appeal

41    The notice of appeal contained one ground:

The Tribunal’s purported decision is vitiated by legal unreasonableness. The learned Judge in the Federal Circuit Court below erred in not so finding.

42    The particulars were essentially the same as those appearing in the application in the court below but the allegation that the Tribunal had denied Mr Dhaliwal procedural fairness was not maintained.

43    At the hearing, Mr Dhaliwal submitted that the primary judge conflated the concept of legal obligations with “legal unreasonableness”. As a result, he argued, his Honour did not make an express finding on whether or not the failure to adjourn the hearing or require the Secretary to obtain further medical evidence was legally unreasonable, which was the central question he was required to determine. The Minister submitted that, if there was no duty to consider whether or not to adjourn, it necessarily follows that it was not legally unreasonable in the circumstances not to adjourn.

44    It is not apparent that the primary judge conflated the concept of legal obligations with legal unreasonableness as Mr Dhaliwal submitted. It is clear, however, that his Honour either misdirected himself or failed to decide all the issues raised by the application for review. The question raised by the application was not the one his Honour posed and answered, namely, whether there was a duty to consider whether or not to adjourn to obtain oral evidence from Ms Casorzo and to request the Secretary to arrange a medical examination or investigation, although the existence or absence of such a duty would certainly have been relevant. There were two questions raised by the application. One was whether the Tribunal’s failure to exercise its discretion in this way was legally unreasonable. The other was whether the Tribunal denied Mr Dhaliwal procedural fairness. The primary judge was required to answer both questions, but he only answered the second. For this reason he fell into error.

45    Since the allegation of procedural unfairness is no longer pursued, the question at the heart of the appeal is whether the failure of the Tribunal to adjourn the hearing to obtain oral evidence from Ms Casorzo and to require the Secretary to arrange for an investigation or medical examination was legally unreasonable.

The statutory scheme

46    The Tribunal’s obligation was to “review” the primary decision (s 348). That involves considering the matter afresh, based on the evidence and arguments put before the Tribunal and any other relevant information the Tribunal itself obtains: see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 33 at [10] (French CJ).

47    The conduct of a review is governed by the terms of Pt 5 Div 5 of the Migration Act (ss 357A-367), which is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals (s 357A(1)). The Tribunal has a discretion to “get any information that it considers relevant” and may invite any person, either orally or in writing, to give information (s 359). Unless the Tribunal considers that the review should be decided in the applicant’s favour on the basis of the material before it, the applicant consents to the Tribunal deciding the review without appearing, or is invited under s 359 to give information or under s 359A to comment on or respond to information within a certain period of time, the Tribunal must invite the applicant to appear before it to give evidence and present arguments arising in relation to the decision under review (s 360). In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [26] the Full Court described this provision as central to the Tribunal’s obligations to accord procedural fairness to an applicant. If the applicant receives such an invitation, the Tribunal must issue a notice in accordance with s 360A. Within seven days of receipt of the notice, s 361 provides that the applicant may give the Tribunal written notice that he or she wants the Tribunal to obtain oral or written evidence from a particular person or persons or other written material relating to the issues arising in relation to the decision under review. If the Tribunal is so notified, it must have regard to the applicant’s notice but it is not required to comply with it.

48    Section 363 relevantly provides:

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

(a)    take evidence on oath or affirmation;

(b)    adjourn the review from time to time;

(c)    …

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

Was the Tribunal’s conduct legally unreasonable?

49    Mr Dhaliwal submitted that the Tribunal “misapprehend[ed] the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it”. This was a quote from the joint judgment of Hayne, Kiefel and Bell JJ in Li at [78]. It was apt to describe the situation in that case. But it is not apt to describe the conduct of the Tribunal in the present case. The facts matter. As the Full Court observed in Singh at [42], “unlike some grounds of review, legal unreasonableness is invariably fact dependent” and determining in any given case “whether an exercise of power crosses the line into legal unreasonableness” requires careful evaluation of the evidence, including any inferences available from the evidence.

50    Li concerned an applicant for a skilled independent overseas student residence visa. One of the criteria for the grant of the visa was that, at the time the decision was made, the applicant had a favourable skills assessment from a relevant assessing authority. Ms Li had previously submitted a skills assessment, which she admitted had contained false information. She applied for a second skills assessment which was refused because one of the two letters of reference on which she relied did not set out in detail her duties and was signed on behalf of her employer by a person who did not disclose his or her position. Ms Li’s migration agent promptly informed the Tribunal of the problem and advised the Tribunal that Ms Li had applied for a review of the assessment by the relevant assessing authority. The agent told the Tribunal that Ms Li was relying on new reference letters from the same two employers supported by taxation statements and payroll summaries. He was confident of a successful outcome. There was good reason for his confidence. As it happens, he was vindicated by the review. He asked the Tribunal to refrain from making a decision while the application for review of the second skills assessment was under consideration. The Tribunal refused the request on the basis that “the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further”. At first instance, Burnett FM held that the Tribunal’s decision to refuse the request was so unreasonable no reasonable Tribunal would have reached it (see Li v Minister for Immigration and Citizenship [2011] FMCA 625 at [49]):

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

51    In the Full Court, Greenwood and Logan JJ agreed that the decision was unreasonable and held that it amounted to a failure by the Tribunal “to discharge its core statutory function of reviewing the decision”: Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [29] (original emphasis).

52    The High Court dismissed the Minister’s appeal.

53    Hayne, Kiefel and Bell JJ observed at [76] that, even where some reasons are provided, as occurred in that case, a court might nonetheless not be able to understand how the decision was reached. Their Honours held that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. At [82] they observed:

It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

The “statutory purpose” to which their Honours were referring to was the requirement in s 360 that the Tribunal give the applicant the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”.

54    Their Honours went on to say, at [83], that, although the Tribunal could not be expected to assume that the review of the second skills assessment would lead to a favourable outcome, it did not suggest that there was no prospect of an outcome in the near future. In these circumstances, their Honours said, it was not apparent why the Tribunal decided to “abruptly” conclude the review. They speculated as to the possible reasons, said it was not possible to say which of the possible errors was made, but concluded that “the result itself bespeaks error”. Their Honours concluded that, “[b]ecause error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law”, did not conduct the review in the manner required by the Act, and consequently acted beyond its jurisdiction.

55    Gageler J came to the same conclusion. His Honour observed at [100] that the requirement for the Tribunal to act reasonably is not exhausted in every case in which an applicant is given a reasonable opportunity to give evidence, provide information, and present arguments in relation to the decision under review. He said at [102] that “the permissive terms in which the power to adjourn is conferred” make it clear that the power is not accompanied by a duty to consider its exercise. On the other hand, he observed, the Tribunal’s duty to review a decision may require the Tribunal, acting reasonably, to consider exercising the power in a particular case. At [103] his Honour said:

The [Tribunal] fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so. The [Tribunal] fails to comply with requirements essential to the valid performance of that duty and to the valid exercise of that power where, having considered the exercise of that power, the [Tribunal] fails to exercise that power so as to adjourn the review in circumstances where no reasonable tribunal could fail to adjourn the review. If an unreasonable failure to adjourn is material to the outcome, such decision as the [Tribunal] goes on in fact to make on the review is invalid. The [Tribunal]’s “ostensible determination” of the review by making the decision “is not a real performance of the duty imposed by law upon [it]”.

(Footnotes omitted.)

56    His Honour concluded that, in the particular circumstances of that case, which he emphasised at [113] were rare, the Tribunal’s decision to refuse the adjournment was so unreasonable that no reasonable Tribunal would have made it. In so doing his Honour endorsed the conclusion reached by Burnett FM and upheld by the Full Court.

57    Drawing on the reasoning in Li, Mr Dhaliwal submitted that “the Tribunal did not give any reasons for its failure to exercise the discretionary powers vested in it by s 363(1) of the Act other than to say [(at [39])] that ‘[it was] satisfied that (sic) the sponsor has had the opportunity to put any evidence or arguments before the Tribunal for its consideration’” (original emphasis). He argued that that was “far from providing, in all the circumstances, an evident, intelligible justification for the Tribunal not adjourning”.

58    The problem with this submission is that it overlooks the fact that the Tribunal did adjourn. It did so in response to the request made by Mr Dhaliwal’s migration agent. Admittedly, the Tribunal did not provide for oral evidence to be taken from Ms Casorzo after its fruitless attempts to contact her during the hearing. Nor did it require the Secretary to arrange for the conduct of a further investigation or medical examination. But no request was made that either course be taken. In these circumstances, the Tribunal’s remark at [39] was unexceptional. No further explanation was called for. Frankly, it is doubtful whether the Tribunal was obliged to say anything at all on the subject.

59    I am not persuaded that the Tribunal’s decision to proceed in the way it did was without an evident and intelligible justification.

60    First, it will be recalled that Mr Dhaliwal did not want Ms Casorzo to be questioned. She was not listed as a witness in the response to the hearing invitation and, through his migration agent, Mr Dhaliwal asked that she be excused from giving evidence.

61    Second, it was not suggested, let alone established, that the Tribunal was advised, either before the hearing commenced or during the hearing, that the sponsor was unable to attend. The Tribunal tried to reach Ms Casorzo several times on the day of the hearing without success. The decision record does not disclose, and there is no evidence to indicate, that either Mr Dhaliwal or his migration agent asked for the hearing to be adjourned to enable Ms Casorzo to be questioned.

62    Third, at no time after the hearing did Mr Dhaliwal, directly or through Mr Singh, ask that arrangements be made to take oral evidence from Ms Casorzo. It is reasonable to infer, based on his earlier request that she not be questioned, that he was at least reluctant for the Tribunal to question her.

63    Fourth it is apparent that the Tribunal considered whether or not to exercise the power to adjourn since it acceded to Mr Singh’s request for extra time to take instructions and to seek additional medical evidence, and it gave him the opportunity to submit further documentary evidence and make further submissions. There is no evidence to indicate that the Tribunal was asked to require the Secretary to arrange for further investigations or medical examinations or to reconvene the hearing in order to question Ms Casorzo.

64    Fifth, through his agent, Mr Dhaliwal submitted a statement from Ms Casorzo. That statement did not suggest she had any relevant evidence to give. It certainly did not corroborate Mr Dhaliwal’s account about the extent to which she relied upon on him for care. Further, she said nothing about any problems with her memory or any lack of support from other people. She did not offer herself for questioning or indicate that she was prepared to be questioned. She did not invite the Tribunal to contact her directly. Nor did Mr Singh inform the Tribunal that Ms Casorzo would make herself available for questioning.

65    In all these circumstances, the Tribunal was entitled to think that there was no point in taking the matter any further. It was reasonable for the Tribunal to conclude that, if Ms Casorzo had anything to say on the subject of her care needs and the extent to which, if at all, she relied upon her husband, she would have said it in her statement or it would have emerged in medical evidence. Yet no such evidence was produced.

66    I accept, of course, that the Tribunal may adjourn a hearing of its own motion and that, in the absence of a request for an adjournment, circumstances may arise in which it is unreasonable for the Tribunal to determine a review application without adjourning to enable additional evidence to be obtained.

67    The only authority to which Mr Dhaliwal could point in which a decision was held to be unreasonable, although no adjournment application was made and refused, was Malecaj.

68    In Malecaj the appellant was lawfully absent from Australia both when the matter was listed for hearing and on the hearing date. The Tribunal was not aware that he was overseas when it listed the matter but it was aware he was overseas by the time of the hearing and it knew then that he would be returning to Australia within a few weeks. Nevertheless, it declined to exercise its discretion under s 362A(2) of the Act to reschedule the hearing and proceeded to determine the application in his absence. The reason the Tribunal gave for deciding not to exercise its discretion under s 362A(2) was that the appellant had not contacted it to explain why he could not attend the hearing at the scheduled place and time. The Federal Circuit Court dismissed the appellant’s application for review, but Pagone J allowed the appeal.

69    Pagone J held at [14] that “[t]he appellant’s failure to communicate with the Tribunal did not relieve the Tribunal of its duty or deprive the appellant of his entitlement to have a meaningful invitation and the proper exercise by the Tribunal of its discretions”. Further, his Honour found at [16] that the appellant was denied “a real chance to present his case”. His Honour noted that the Tribunal did not appear to have considered whether, in the circumstances, it should have exercised its discretion to adjourn the hearing and concluded that its decision to proceed as it did was only explicable on the basis that it had failed to consider whether its invitation to the appellant to attend the hearing had been meaningful.

70    The circumstances of the present case were not of this order. Indeed, the Tribunal’s reasons indicate that it did consider whether it had given Mr Dhaliwal a meaningful opportunity to be heard in the sense in which Pagone J used the expression in Malecaj.

71    Mr Dhaliwal submitted that the Tribunal had concerns about the insufficiency of the evidence before it. He argued that the Tribunal attached importance to taking evidence from the sponsor about her health. He referred to the Tribunal’s observation that it was “unfortunate it did not have the opportunity to take evidence from the sponsor with regard to her current treatment, functional restrictions and care needs she has as a consequence of her medical conditions”.

72    In SZIAI at [25], the High Court said:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

73    Drawing on SZIAI at [25], Mr Dhaliwal submitted that the Tribunal had, in effect, clearly identified what information might be elicited if it adjourned the hearing to obtain oral evidence from the sponsor or sought further medical evidence and that such information was “critical to the validity of its decision”. Mr Dhaliwal submitted that the Tribunal viewed the following as critical facts:

(1)    the functional limitations on the sponsor’s activities of daily living;

(2)    any difficulties she may experience in her role as a residential care worker;

(3)    her specific care and support needs; and

(4)    whether she was suffering from, or requiring treatment for, anxiety or any mental health condition.

74    Mr Dhaliwal also submitted that the Tribunal attached importance to further medical evidence, given that it identified both the medical evidence from which it would have benefited and the professionals whose evidence it would have considered.

75    These submissions must be rejected.

76    In SZIAI the Court did not explore the questions of principle it raised at [25] any further. It did so for two reasons, outlined at [26]. The first was that “there was nothing on the record to indicate that any further inquiry by the Tribunal directed to [the relevant subject] could have yielded a useful result”. The Court noted that there was nothing before the primary judge or the appellate court to indicate what information might be elicited if the Tribunal were to undertake the inquiry said to be critical to the validity of its decision. The second was that the response made by SZIAI’s solicitors to a letter from the Tribunal indicated the futility of further inquiry. The Court said that, ‘[f]or these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error”.

77    Here, too, there is no factual basis for the conclusion that the Tribunal’s conduct was so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error. For the reasons I have given, “there was nothing on the record to indicate that any further inquiry by the Tribunal directed to [the relevant matters] could have yielded a useful result” and “nothing to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision”. Moreover, the material submitted to the Tribunal by Mr Dhaliwal’s agent after the hearing indicated that taking oral evidence from Ms Casorzo was likely to be futile. I respectfully agree with the primary judge that requiring the Secretary to arrange for a medical examination or, I would add, some other, unspecified, investigation(s), could not be characterised as making an obvious inquiry about a critical fact, the existence of which is easily obtained.

78    Besides, it is incorrect to describe the Tribunal’s remarks as “concerns” about the insufficiency of the evidence. The Tribunal’s remarks were simply reflections on the state of the evidence. They formed part of the reasons that the Tribunal was not satisfied that Ms Casorzo’s state of health was a compelling reason for not applying the Schedule 3 criteria. The so-called “critical facts” were gaps in the evidence. The fact that the Tribunal had the power to take oral evidence from Ms Casorzo after its attempts to contact her by telephone during the hearing had proved unsuccessful or that it could have required the Secretary to arrange for further investigations or medical examinations to be conducted does not mean that, in the particular circumstances of this case, it was duty-bound to do so or that it was unreasonable not to have done so. In carrying out its functions, the Tribunal was required to “pursue the objective of providing a mechanism of review that”, amongst other things, “is fair, just, economical, informal and quick”: Administrative Appeals Tribunal Act 1975 (Cth), s 2A(c). Like s 425, s 360 does not require that the Tribunal actively assist an applicant to put his or her case: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36] (Gray, Cooper and Selway JJ). It is for the applicant to advance whatever evidence or argument he or she wishes to advance: Abebe v Commonwealth (1999) 197 CLR 510 at [187].

79    As Keane CJ said in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22] of the analogous provisions in Pt 7 of the Act:

None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.

See also Emmett J at [49] and Perram J at [87].

80    For all these reasons, I am not satisfied that, by not making additional arrangements for Ms Casorzo to be questioned or by requiring the Secretary to arrange for investigations or medical examinations, the Tribunal’s conduct was legally unreasonable such that it is proper to conclude that its decision was infected by jurisdictional error.

Conclusions

81    It follows that the appeal should be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    21 April 2020