Federal Court of Australia

BKB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1584

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

BACKGROUND

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2), which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) made on 24 January 2017 to refuse to grant the appellants Class XA subclass 866 protection visas.

2    The appellants applied to the Tribunal on 16 February 2017 for a review of the delegate’s decision. On 26 February 2020, the appellants appeared before the Tribunal to give evidence and make submissions with the assistance of a Punjabi interpreter. On 3 March 2020, the Tribunal affirmed the delegate’s decision not to grant the visa as it was not satisfied that the appellants satisfied the criteria for protection in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Act).

3    On 31 March 2020, the appellants filed an application with the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision. At the hearing on 5 November 2021, the primary judge granted the appellants leave to rely on an amended application. On 2 December 2021, the primary judge dismissed the amended application (BKB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 292).

4    The first and second appellants are citizens of India who, at the time of their protection visa application, had been in Australia for over seven years as holders of student visas and temporary work visas. The third appellant was born in Australia in 2014. In 2014, the first and second appellants’ work visas were cancelled and their challenge to that cancellation was dismissed by both the Tribunal and the FCCA.

5    The first appellant, BKB20, claimed to fear harm in India due to his father’s political affiliation with the Shromini Akali Dal political party (Akali Dal). This had included BKB20 suffering harm while assisting Akali Dal during past election campaigns. BKB20 claimed that, while visiting India for a wedding in 2012, having campaigned for Akali Dal for that year’s municipal elections, he was attacked and beaten by persons unknown. The second and third appellants’ claims were based on those of BKB20, and they made no separate claims of their own.

GROUNDS OF APPEAL

6    The sole ground of appeal in this Court is particularised as follows:

1.    The learned trial judge erred in concluding that the Administrative Appeals Tribunal (AAT) had given active intellectual consideration to the Appellant’s requests for an adjournment, and/or that the refusal to grant an adjournment was legally reasonable. The learned trial judge should have found that the AAT committed jurisdictional error.

Particulars

(a)    The Appellant requested an adjournment on numerous occasions.

(b)    The AAT did not give active intellectual consideration to the application for an adjournment.

(c)    The AAT did not offer any explanation for refusing the adjournment other than that it considered that the Appellant had time in Australia to prepare his application and did not need any more time.

(d)    The AAT did not consider when the Appellant was first presented with the information, the Appellant’s particular circumstances (including the absence of legal representation), the fact that there was no prejudice to the AAT or any other person in the grant of an adjournment or the fact that the Appellant did not consider that he had received adequate opportunity to present his case.

(e)    The reasons given by the AAT did not constitute an evident or intelligible justification for refusing the application for an adjournment.

7    In order to demonstrate the Tribunal’s error, BKB20 sought to rely on the transcript of the Tribunal proceeding, which was in evidence in the Court below as well as in this Court.

LEGAL FRAMEWORK

8    In a statutory Court with jurisdiction to review only for jurisdictional error, the statute itself is the source of the law as to what constitutes procedural fairness. Part 7 of the Act sets out the procedural fairness requirements that the Tribunal is to follow when conducting merits review of a decision not to grant a protection visa. Under s 424A, the Tribunal must give to an applicant clear particulars of adverse information that the Tribunal considers would be dispositive of its review, unless that information is general information about the country of reference or unless the information was provided by the applicant for the purposes of the review. The Tribunal may comply with s 424A by giving notice of that information to an applicant orally at hearing and inviting a response (s 424AA(1)(a); SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 per Moore, Tracey and Foster JJ). If the Tribunal does so, the Tribunal must advise the applicant that they may ask for additional time to respond and consider whether to adjourn (s 424AA(1)(b)). The Tribunal also has the discretionary power to adjourn a review under s 427(1)(b) of the Act. Relevant to whether the Tribunal exercises that discretion is the overarching objective that the Tribunal conducts merits review in a way that is accessible, fair, just, economical, informal and quick (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)).

9    Because the power to adjourn in s 427(1) of the Act is discretionary, it cannot be a procedural fairness error for the Tribunal not to adjourn. However, Parliament is taken to have intended that the Tribunal will exercise a discretionary power, including to adjourn its proceedings, reasonably (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [116] per Gaudron J; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ and at [88] per Gageler J (as his Honour then was); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [53] per Gageler J (as his Honour then was)). Even if the Tribunal has complied with all of its procedural fairness obligations, a failure to take a discretionary procedural step, such as allowing an applicant additional time to respond to issues it has raised, can be so unreasonable as to constitute a failure to properly arrive at the decision (Li at [100]-[102] per Gageler J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) per Allsop CJ, Robertson and Mortimer J (as her Honour then was). Nonetheless, the principle of legal unreasonableness does not expand procedural fairness requirements. A Tribunal is not under an obligation to afford exhaustive opportunities for presentation of the best possible case; and may decide, in the interests of discharging its functions in a way which is fair, just, economical, informal and quick, that “enough is enough” (Li at [82] per Hayne, Kiefel and Bell JJ).

10    In this appeal, it was not in dispute that, although the Tribunal purported to comply with s 424AA, the information the Tribunal put to the appellants at the hearing was not “information” for the purposes of s 424A and therefore did not invoke the procedural fairness obligations in ss 424A and 424AA. The appellants nonetheless contended that, once the Tribunal had advised them of the right to request an adjournment and the appellants had done so, the Tribunal’s treatment of that request was legally unreasonable.

THE TRIBUNAL HEARING AND DECISION

11    The Tribunal’s decision was usefully summarised by the primary judge at [15]-[22]. The Tribunal found the accounts of past harm provided by BKB20 and his wife to be implausible and inconsistent. In particular, the Tribunal found BKB20’s claim to have suffered harm while assisting with the 2012 municipal elections to be implausible because country information showed that those elections had been held in June, whereas BKB20’s evidence was that he had not travelled to India until November 2012. Movement records from the Minister’s Department which were in evidence before the Tribunal confirmed that BKB20 and his family had travelled to India on 8 November 2012 and returned to Australia on 18 December 2012. The Tribunal also raised concerns that BKB20’s oral evidence differed significantly from the claims made in the visa application paperwork.

12    As the primary judge recorded (at [35]), the Tribunal put these issues to BKB20 for a response during its hearing. It was common ground in this Court that the Tribunal was not required to do so, as the matters it raised were not “information” that would invoke its obligations under s 424A. Nonetheless, the Tribunal having done so and having informed the appellants that they may request an adjournment, the appellants have now sought to challenge the way in which the Tribunal then dealt with their requests during the Tribunal hearing for more time to respond to those issues. The primary judge recorded (at [38]) multiple places in the Tribunal transcript where BKB20 requested more time; firstly, in response to the Tribunal raising inconsistencies within BKB20’s evidence, and between that evidence and country information:

... I can’t recall the dates. If I’m allowed more time then maybe I can think about it and put the dates accurately.

Yeah, I’m just requesting if I can be allowed more time so I can just sit and write down exactly the dates …

13    Then, in response to the Tribunal raising inconsistencies between the evidence of BKB20 and his wife:

I just want to say if we can get some more time please ... we are requesting if we can be given some time to respond.

... We’re just requesting more time if we can mention things properly.

We are doing it all ourselves, we got no advice or no legal help and we are trying to do whatever we can.

14    In response to the Tribunal raising these inconsistencies, BKB20 also claimed to have problems with his memory and mental health. The Tribunal put to BKB20 that it did not accept as plausible that he would not be capable of recalling key events of past harm he claimed to have suffered. The Tribunal indicated to BKB20 that he had had three and a half years to prepare the application, and did not consider that he needed any more time to do so.

15    When setting out its credibility findings in its decision record, the Tribunal said (at [60]):

When these inconsistencies were pointed out to [BKB20], he claimed he needed more time to work out the dates. This does not explain the significant inconsistency as to the number of times [BKB20] claims to have been arrested and the events that occurred during the time that he claims he was in police custody. The Tribunal does not accept that if these events actually occurred that there would be such significant inconsistencies in [BKB20’s] narrative of his dealings with the police.

16    At various points in its decision record, the Tribunal also dealt with BKB20’s claims in relation to his memory problems:

21.    [BKB20] responded by saying that in a rush he had not made a note of the dates. He said that he did not fully recall what happened and the Tribunal should speak to his wife. He said that he has a problem with his memory, but had no medical or other evidence to support this claim.

…

23.    The Tribunal referred to the statement provided by [BKB20] in support of his application. This statement was significantly inconsistent to the information that he was now providing. The Tribunal went through with [BKB20] the multiple inconsistencies in the claims that he was now making to [those] that he made when he applied for the Protection visa. [BKB20] said that he had a bad memory and needed time to be able to correct the information. The Tribunal noted that if the events had actually occurred and he was providing truthful evidence, he would not require further time to correct the information.

…

74.    [BKB20] claimed that the inconsistencies in his claims were because he had not made a note of the dates. He claimed he had a bad memory. There is no information before the Tribunal that [BKB20] has any medical condition or any other reason that would affect his memory. As stated by the Tribunal during the hearing, it was not so much the incapacity of [BKB20] to provide the dates on which events occurred, as [BKB20] could only provide the years that alleged events occurred, but the significant inconsistency in the narrative of the events. The Tribunal accepts that people who have suffered traumatic events will often have difficulties in recalling the particulars of those events. [BKB20] was unable to provide any particulars of the alleged events and the narrative he gave as to his claims before the Tribunal were in complete contradiction to the claims he made in his written statement. The Tribunal does not accept that the inconsistency in the information [BKB20] provided to the Tribunal at the hearing when compared to his written statement was based on any memory loss or his failure to note the dates. The Tribunal finds the inconsistencies were because these events did not occur and [BKB20] has fabricated his claims.

17    The Tribunal’s credibility concerns were heightened by the delay between the appellants’ first arrival in Australia and their application for protection, and the fact that protection claims were not raised when the earlier Tribunal was considering cancellation of the appellants’ work visas. On the basis of its credibility findings, the Tribunal did not accept that the appellants’ claims for protection were genuine, and affirmed the delegate’s decision to refuse to grant the visa.

DECISION OF THE PRIMARY JUDGE

18    The amended application before the primary judge contained two grounds. The first ground contended that the Tribunal had not discharged its procedural fairness obligations under s 424A of the Act. That ground has not been pursued in this appeal.

19    The second ground before the primary judge was as follows:

The Tribunal failed to give active and intellectual consideration to [BKB20’s] request for an adjournment and/or acted in a legally unreasonable way in considering that request. This constituted jurisdictional error.

(particulars omitted)

20    In relation to that ground, the primary judge found as follows (at [62]):

In my view, the Tribunal’s refusal to grant time to respond to the information was not unreasonable. The decisions in Li and Singh are readily distinguishable. In Li there was no intelligible justification for the refusal of more time, which would have permitted the applicant to complete an otherwise incomplete application. In Singh, there was no active intellectual engagement with the issue. In the present case, there was no gap in the application which could have been cured by an adjournment. [BKB20] could not change the date of the Indian municipal elections and neither could he change the date of his arrival in India. There was no suggestion at the trial of any factual error made by the Tribunal in respect to either the date of the election or the date of [BKB20’s] arrival. Counsel for the [appellants] suggested that the provision of more time might have enabled [BKB20] to, in effect, re-craft his claims so that his claim of harm related to post election violence rather than violence leading up to the election. While that may have been so, it was not unreasonable for the Tribunal to decline to provide time for an applicant to “massage” his claims in the face of glaring credibility concerns.

21    The primary judge concluded that jurisdictional error had not been made out and accordingly the application for review was dismissed.

THE APPELLANTS’ SUBMISSIONS

22    The appellants contended that [60] of the Tribunal’s decision record contained the only explanation from the Tribunal of its refusal to adjourn and that it revealed either an inadequate consideration of whether to exercise that discretion or that the decision not to adjourn was legally unreasonable. The appellants submitted this was so for eight reasons:

(a)    first, the Tribunal should have taken BKB20’s request for more time to work out “the dates” to mean more time to consider the various matters the Tribunal had raised during the hearing;

(b)    second, the Tribunal did not break down the concerns it had to allow the appellants to respond to each discretely. The appellants contended that this was unfair for the same reason observed by Rangiah J in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 (CZBH) (at [65]):

One aspect of the conduct of the hearing that was not optimal was the Tribunal’s apparent attempt to comply [with] s 424AA, which requires the Tribunal to orally give an applicant clear particulars of any information that the Tribunal considers would be a reason for affirming the decision under review, and to orally invite an applicant to comment on or respond to the information. The Tribunal did this by delivering lengthy monologues, broken only by the interpreter, conveying a number of pieces of information at once, and asking for the appellants’ comments at the end. To realise this was unfair, the circumstances need only be considered. The appellants were in a strange and pressurised situation of giving evidence through an interpreter concerning matters of great importance to them. Each piece of information reflected a reason why the Tribunal might affirm the decision under review. Yet they were being asked to absorb and address all of those pieces of information at once. A fairer way to proceed would have been to put to the appellants each piece of information and to seek their responses one at a time, even though that would have taken more time. The Tribunal’s compliance with s 424AA is not just a matter of going through the motions. Section 422B(3) requires the Tribunal to act in a way that is fair.

(c)    third, BKB20 claimed during the hearing that he had difficulty recalling dates as he had problems with his mental health and memory. The appellants contended that the Tribunal dismissed that claim due to lack of medical evidence, when the issue only arose for the first time during the hearing. The appellants submitted that it was unreasonable for the Tribunal to refuse to adjourn without giving proper consideration to whether BKB20’s ability to give oral evidence was affected by the claimed health issues. The appellants contended that this is an example of the kind of unwarranted and unsubstantiated assumption leading to the rejection of evidence that was found in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 per Flick J. The appellants submitted that it was both conclusory and circular for the Tribunal to find that memory issues did not explain the inconsistencies, because of those inconsistencies;

(d)    fourth, the Tribunal raised inconsistency issues with the appellants for the first time at the hearing. The appellants contended that, although there was no obligation for the Tribunal to give advance notice of its concerns, the lack of such notice was a factor relevant to whether to grant an adjournment, which the Tribunal should have taken into account;

(e)    fifth, the Tribunal rejected the adjournment request on the basis that it was not satisfied by the appellants’ explanation for the inconsistencies, where the very reason for the adjournment request was to allow time for the appellants to clarify those inconsistencies;

(f)    sixth, the Tribunal did not appear to take into account the lack of prejudice to the Minister in allowing an adjournment;

(g)    seventh, the Tribunal did not appear to take into account the fact that the appellants were self-represented and speaking to the Tribunal through an interpreter. The appellants sought to rely on EPH17 v Minister for Immigration and Border Protection (2019) 166 ALD 47; [2019] FCA 824 per Kenny J in submitting that the Tribunal was required to take particular care in ensuring self-represented litigants were given an effective opportunity to present their case;

(h)    eighth, although the Tribunal dealt with the adjournment request in relation to the inconsistencies within BKB20’s evidence and with country information, the Tribunal did not address in its decision record the later adjournment requests made in relation to the inconsistencies in the evidence given by BKB20 and his wife. The appellants submitted that this evinced a failure to properly consider the adjournment requests.

23    For the above reasons, the appellants submitted that, even if the Tribunal did properly consider the requests, its decision not to adjourn was legally unreasonable. This was said to be because the Tribunal’s finding that the appellants had had enough opportunity to present their claims did not provide an evident or intelligible foundation for refusing an adjournment in relation to matters first raised with the appellants during the Tribunal hearing.

24    The appellants submitted that, accordingly, the primary judge was incorrect to find no jurisdictional error in the Tribunal’s decision not to adjourn the review.

THE MINISTER’S SUBMISSIONS

25    The Minister submitted that part of the Tribunal’s statutory task is to provide a real and meaningful hearing, which properly entailed probing and testing the appellants’ claims. The Minister pointed out that earlier in the Tribunal hearing, BKB20 was able to recall past events and provide details without a problem. It was only when the Tribunal raised inconsistencies in the evidence that BKB20 claimed to suffer memory loss. The Minister contended that the appellants were given an opportunity to address the inconsistencies and that their explanation was insufficient to overcome the Tribunal’s concerns or satisfy the Tribunal that BKB20 was not capable of recalling significant events. In this regard, the Minister submitted that Rangiah J’s comments in CZBH on which the appellants rely were obiter dicta and that this matter may be distinguished from CZBH, which concerned compliance with the procedure in s 424AA of the Act.

26    The Minister contended that, in this matter, the Tribunal did consider the adjournment requests and gave two evident and intelligible bases not to exercise the discretion: firstly, country information disproved the factual foundation of one of the appellants’ central claims and, secondly, the appellants had had sufficient time to prepare their case.

27    The Minister submitted that review for legal unreasonableness is always fact-specific (Singh at [42]) and “necessarily stringent” (SZVFW at [11]). The Minister submitted that the primary judge was correct to find that, in the circumstances of this case, the decision not to adjourn was not legally unreasonable. This was said to be because it cannot be unreasonable per se for a Tribunal to refuse to adjourn whenever an applicant requests more time to respond to issues raised at a hearing, and there was nothing in the circumstances of this case that would lead to the conclusion that the only reasonable decision open to the Tribunal was to adjourn the review. The Minister submitted that, as the primary judge found (at [62]), additional time could not cure the problems identified by the Tribunal, such that it was entitled to find that “enough is enough”.

CONSIDERATION

28    BKB20 asserted that the Tribunal failed to give proper consideration to BKB20’s multiple requests for more time to consider the evidence arising at the hearing, and alternatively that the Tribunal failed to provide an evident or intelligible justification for refusing to afford BKB20 more time. The issue before this Court was whether the determination by the Tribunal as to whether to adjourn was made in a legally reasonable way. As to that issue, the question was raised as to whether the Tribunal gave proper, genuine and realistic consideration to the adjournment requests.

29    BKB20 referred to the decisions in Li and Singh, each of which was a decision concerning a request for an adjournment. The decision in Li was submitted to have held that the reason advanced by the Tribunal – that Ms Li had been provided with enough time to satisfy the visa requirements already and it was not prepared to delay further – was not an adequate justification for refusing an adjournment, and was legally unreasonable.

30    BKB20 referred to the Full Court as having held in Singh that the Tribunal had failed to give active and intellectual consideration to a request for an adjournment, and to provide an objective or intelligible justification for its refusal to adjourn the proceedings. BKB20 continued: “In that case, the Tribunal had determined that an adjournment was not appropriate because the applicant had made his visa application 2 years earlier and it considered that he had received several opportunities to sit the English language test required for his visa ... The Full Court held this approach to be legally unreasonable”.

31    The appeal in Singh concerned the exercise of the discretionary adjournment power reposed in the Migration Review Tribunal (MRT) and whether in that case, when the MRT refused to exercise that power to adjourn the review it was conducting with respect to the visa application, the MRT’s exercise of power was legally unreasonable.

32    In concluding that the MRT’s exercise of power was, in the circumstances of the case, legally unreasonable, the Court said “[t]he principal factor leading to that conclusion is that the [MRT] was asked by [Mr Singh] to exercise its adjournment power so [Mr Singh] could obtain a re-mark of an English skills test the [MRT] itself had agreed he should be able to take before it concluded its review”. Referring to “all of the facts and circumstances of this appeal”, the Court concluded that “the [MRT’s] refusal of an adjournment was not a reasonable exercise of power, which is a condition of its validity” (at [2]).

33    In that context, it was said that, importantly, the case below and the appeal were conducted on the basis that Mr Singh was able to satisfy the criteria at any time up to and until the decision of the MRT (at [9]).

34    As the Court emphasised, it was not the correct approach to the disposition of the appeal “to take the facts in Li and engage in a comparison with the facts in this appeal. Nor is that the correct approach in any other appeal to which the principles in Li are contended to apply” (at [41]).

35    The Court continued (at [42]):

It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence.

36    In Singh, the Court set out at [44] two different contexts identified in Li in which the concept of legal unreasonableness is applied, namely:

(a)    legal unreasonableness can be a conclusion reached by a supervising court after the identification of underlying jurisdictional error in the decision-making (at [28] per French CJ; at [72] per Hayne, Kiefel and Bell JJ); and

(b)    legal unreasonableness can also be outcome focused without necessarily identifying another underlying jurisdictional error. It is an inference to be drawn because the Court cannot identify how the decision was arrived at – the exercise of the power lacks “an evident and intelligible justification” (Li at [66]).

37    When no reasons for the exercise of the power are provided, the Court is left to focus on the outcome of the exercise of the power in the factual context presented and assess for itself its justification or intelligibility bearing in mind it remains for the repository of the power and not the reviewing Court to exercise the power, but to do so according to law (Singh at [45]).

38    On the other hand, where reasons are provided, it is possible to follow the reasoning process of the decision-maker to identify factors said to make the decision legally unreasonable (Singh at [45]).

39    In Singh, the Court was able to infer from earlier comments made by the MRT that the MRT did not give the adjournment request any independent or active consideration (at [65]).

40    Moreover, the Court concluded that neither of the grounds relied upon by the MRT in refusing the request suggested the adjournment application was considered by the MRT:

(a)    in the context of the manner in which the review had been conducted; or

(b)    in the context of the steps which had already been taken in the review with the MRT’s agreement.

41    The MRT’s grounds did not, in the view of the Court, suggest the adjournment request was considered by reference to the specific content of the adjournment request made by Mr Singh (at [68]).

42    The Court noted that the MRT had conducted the review on the basis that Mr Singh should be able to sit an International English Language Testing System (IELTS) test after his application for review was lodged with the MRT. This was consistent with the Tribunal acting on the most up-to-date information. Moreover, the MRT had previously agreed to wait until the results of the IELTS test became available. The adjournment had been requested to enable a re-mark to ascertain whether the test marking was an accurate reflection of the student’s performance on that test. The Court noted that Mr Singh was requesting an opportunity to confirm or verify that the results of the tests already undertaken (which had been contemplated by the MRT) were an accurate reflection of his performance on the test. He was not requesting an opportunity to sit another test. The Court noted that the request for adjournment, to enable a re-mark, must have conveyed to the MRT that Mr Singh did not consider that he had presented his case. It appeared to the Court that the MRT did not appear to have considered this (at [72]).

43    The Court also noted that, objectively, (and so before the MRT) there was a reasonable basis to believe the mark may not have been an accurate reflection – Mr Singh had passed the particular component to be re-marked on all three occasions when he had previously sat the IELTS test (at [73]).

44    The Court concluded, in Singh, that there was no objective or intelligible justification given by the MRT for refusing the adjournment. There was no reason to believe that the re-mark would have taken a long time and there was a basis (on the marks previously received in the same test) to have a level of confidence that the re-mark might deliver adequate results. The Court concluded that the “whole exercise was aimed at producing for the [MRT] a verified and accurate mark of a test it had agreed to [Mr Singh] taking and using as evidence in the review” (at [75]).

45    The Court recorded that there was no evidence as to why the MRT needed to make an immediate decision, and there was no prejudice to anyone from a short adjournment, but there was significant and inevitable prejudice to Mr Singh if the adjournment were refused.

46    In Li, Ms Li was awaiting the outcome of a review by Trades Recognition Australia (TRA) of Ms Li’s unsuccessful application for a skills assessment. As was pointed out by French CJ, there was good reason to expect the criterion would be met – Ms Li’s migration agent had shown the MRT that there was a proper basis for expecting a favourable outcome in response to the request for a review by TRA, and there was no practical countervailing consideration disclosed in the MRT’s reasons for refusing to defer its decision (at [21]).

47    As was observed by Hayne, Kiefel and Bell JJ, “[t]he legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably” (at [63]). There is an area within which a decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness (at [66]).

48    It is not open to the courts to undertake a review of the merits of an exercise of the discretionary power – “a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker” (at [66]). Hence, a consideration is whether the decision is one which no reasonable decision-maker could make in the circumstances of the case.

49    The test is at a high bar. It has been variously described. In SZVFW, Kiefel CJ (at [11]) described the test as “necessarily stringent”. Gageler J (at [52]) described it as “extremely confined” (when adopting the language of Brennan J (as his Honour then was) in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1) and again as “into the realm of the extraordinary” (at [70]). Edelman J described it as being expressed in “strong terms” (at [135]).

50    In Li, Gageler J (at [124]) described the decision under consideration as being one that “[n]o 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”. Putting it another way, there must be an evident or intelligible justification for the decision.

51    Hayne, Kiefel and Bell JJ observed (at [82]):

It cannot be suggested that the [MRT] 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.

52    In making those observations, against the factual background of the case, the majority (at [82]) was referring to the explanations provided by the MRT, which essentially were that:

(a)    Ms Li had been provided with enough opportunities to present her case; and

(b)    the MRT was not prepared to delay the matter any further.

53    It was said by Gageler J in Li (at [105]):

Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law [Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]].

54    It follows that, as would be expected, a consideration as to whether a decision is legally unreasonable must be taken by reference to all of the facts of the case.

55    For example, in each of Li and Singh, the reason for the request was the availability of a piece of information, the steps to the obtaining of which had already been put in train and where, on the evidence before the MRT, the information was likely to be positive to each of Mr Singh and Ms Li’s prospects and of relevance to the decision which was being considered by the MRT. Particularly in Singh, the progress of the IELTS tests were well-known to the MRT, as were the results of the previous tests which, in the area which required re-marking, suggested that the re-marking would likely be such that the requirements for issuing a visa would be made out. The approach taken by the MRT therefore did not fall within the range of possible acceptable outcomes.

56    In those circumstances, for the decision-maker simply to say “enough is enough” was not legally reasonable.

57    Neither decision is authority for the proposition that, in every case, a response of “you have had plenty of time” will be a response which is legally unreasonable. This is, for example, obvious from the comments from Hayne, Kiefel and Bell JJ at [82] of Li. Each response must be considered in the context of the factual matrix.

58    In this case, there were three occasions when BKB20 sought time and the request for adjournment was refused.

59    The primary judge distinguished this case from the decisions in Li and Singh. It is correct to conclude that the circumstances were quite different in this case. It is not necessary to distinguish those cases. The criteria which were central to the decisions in Li and Singh were not evident in this case. The requests for adjournment were made in different contexts.

60    In Li and Singh, there was a gap in the information to satisfy the visa requirements, which was known to the MRT in each case, and Ms Li and Mr Singh were awaiting receipt of information (the provision of which was already in train) which, as known to the MRT, was likely to satisfy the requirements.

61    In this case, the first request for an adjournment related to a claim that BKB20 had been beaten and arrested when he returned to India in 2012 and engaged in campaigning for municipal elections. BKB20 had said that he was injured in the lead up to municipal elections which occurred in Punjab in November 2012, the time he returned to India to attend a wedding. Country information revealed that the elections occurred in June 2012.

62    The Tribunal member put these inconsistencies to BKB20 as follows:

Q123    … This indicates that the evidence that you’re giving to the [T]ribunal is not credible. Do you want to comment on, or respond to that information? And if you want an adjournment to have further time to comment you can request that. Do you want to comment?

A    (INT) In a rush I have not really made a note of the date and I don’t have much – I can’t recall the dates. If I’m allowed more time then maybe I can think about it and put the dates accurately.

Q124    Well, it doesn’t really matter if you find out what the dates are because what it indicates is what you’re telling me is just not true because I can tell you when the dates are, the municipal elections occurred in June 2012. So there were no elections that occurred in Punjab immediately after November 2012.

A    (INT) As I said, I don’t recall fully. The elections may have happened but we were involved in this rally so I don’t really – it’s been a long time, I don’t really recall what exactly was happening. Last time we did manage to tell the dates but today is very confusing for me.

63     The primary judge concluded (at [62]):

In the present case, there was no gap in the application which could have been cured by an adjournment. [BKB20] could not change the date of the Indian municipal elections and neither could he change the date of his arrival in India. There was no suggestion at the trial of any factual error made by the Tribunal in respect to either the date of the election or the date of [BKB20’s] arrival. Counsel for the applicants suggested that the provision of more time might have enabled [BKB20] to, in effect, re-craft his claims so that his claim of harm related to post election violence rather than violence leading up to the election. While that may have been so, it was not unreasonable for the Tribunal to decline to provide time for an applicant to “massage” his claims in the face of glaring credibility concerns.

64    I agree with the thrust of what was said by the primary judge. As to the dates, the Tribunal had country information regarding the municipal election dates and had information regarding the dates when BKB20 was in India. Those dates could not have been corrected by further information. An adjournment could not advance the position as to the dates. The decision taken in refusing that adjournment is a decision which was open to the Tribunal. It was within the range of possible acceptable outcomes.

65    The second request for adjournment is set out in the following passage from the transcript:

Q134    Okay. Because the claims that you’re making now they’re nothing like the claims that [your wife] made in the original application.

A    (INT) That’s why I am saying that I don’t remember a lot of things, I have a lot of pressure mentally and I also have a daughter now.

Q135    Well, you see, I just don’t – I have difficulty accepting that you said that you were involved in a little bit of a dispute in 2012 elections that actually didn’t happen and that you were arrested by the police for – and held in prison for two days but nothing happened to you there and that apart from the two days in prison in 2012 you’ve never been in gaol before. Because your claims are that in – you’ve been arrested on a number of occasions – so what involvement – you say that you are not really involved in politics.

A    (INT) So they normally arrest but I have not been in gaol before that time.

Q136    Okay. But you say the police arrested me and other workers, we were beaten up in police custody for three days and then released after a bribe. That’s nothing like what you’re saying now and that happened in 2007, you say. Do you understand when I read this and I hear what you just said that it just doesn’t sound true?

A    (INT) Like I said, it’s been a long time ago, I don’t remember some of the things, maybe my wife can explain better than me.

Q137    Well, you see, I can’t – I have difficulty accepting that any memory problems you would have would mean that you would forget that you were in police custody for three days, beaten and then had to pay a bribe of 1,000 lakh. That was one lakh rupee, not 1,000.

…

A    (INT) Well, whatever was written before probably some of it has happened. I don’t recall the dates.

Q139    It’s not so much the dates, although that is relevant, it’s the fact that you don’t even recall being arrested by the police and then you say in 2009 that you were stopped by workers from the congress party and attacked. You say that you were admitted to hospital for two days and got cuts on my face and lost lots of blood and then after being discharged from the hospital the police came to your house and arrested you and took you away. This is inconsistent with your evidence which was to say, well, we had arguments but there was nothing much, there’s always a bit of pushing and shoving but nothing much. So again, it’s not the dates, it’s the fact that you can’t even – you say that this didn’t even happen. Do you want to comment on that?

A    (INT) I just want to say that because mentally I’m very disturbed and after such a long time some things I don’t remember.

…

A    (INT) Yeah, I’m just requesting if I can be allowed more time so I can just sit and write down exactly the dates. So whatever doesn’t match or whatever so I can look at that and try and rectify things where things are not right.

Q142    You’ve had four years. So almost four years since filing your application. I don’t think it’s a matter of you working out what might’ve happened to fix up your dates, it’s what’s the truth. So I don’t think it’s a matter of working out – making up a story to tell me the truth, you’re just telling me what happened and the significant inconsistencies in your story make me question whether it’s credible.

66    Again, the request for adjournment seems to have been to allow BKB20 to think about the matter again. The primary judge described this as a request to be able to “re-craft” the claims when discussing the earlier request. I agree. A comment was made by BKB20 that “whatever was written before probably some of it has happened”. The request is couched in terms of “[s]o whatever doesn’t match or whatever so I can look at that and try and rectify things where things are not right”. There is no suggestion (and could be no confidence) that this would occur when, immediately prior to that request, BKB20 said that “after such a long time some things I don’t remember”. Again, a focus was on a request to “sit and write down exactly the dates”. As the Tribunal pointed out, this was not to the point. The point related to significant inconsistencies in what had been said.

67    In the circumstances, the decision taken by the Tribunal as to the request for an adjournment was open to the Tribunal and was one within the range of possible acceptable outcomes.

68    A further request for an adjournment is described in the following passages from the transcript:

Q246    Okay. The information provided by your wife is inconsistent with the information you have just provided in relation to the application. What you said was that when you were attacked your wife was not with you and this is the 2012 incident. She said that there was a political rally. You said that the toe injury you received because you were stomped on by somebody during that attack. She said that you got a toe infection when you were in Australia and that’s why you’re going to the hospital in India. The claims made by your wife now is that you were driving a car which is inconsistent to the previous statement that you’ve made. All these matters are inconsistent with the claims that have been made previously and the claims that you’ve just made now today. The inconsistencies in the claims made by both you and your wife indicate that they’re not genuine and that they have just been generated by you two to bring a protection visa application … Do you want to comment on, or respond to that information?

A    (INT) I just want to say if we can get some more time please and also that one time my wife wasn’t there but when going to the hospital she was with me. We are going through a tough time, we are very upset and we are requesting if we can be given some time to respond.

Q247    I’m going to try to get a decision out as soon as practical after I consider all the evidence. Is there anything else that you want to say to me about your application?

A    (INT) No, nothing. We’re just requesting more time if we can mention things properly.

Q248    So you just want more time to be able to stay in Australia?

A    (INT) Yeah, but also to tell you properly and also if the visa can be approved so we can stay here.

Q249    You’ve had four years in Australia or three and a half years in Australia with this application. I can’t see that you need anymore time to prepare. Nothing further then?

A    (INT) We are doing it all ourselves, we got no advice or no legal help and we are trying to do whatever we can.

69    The Tribunal did not respond to this request for an adjournment. As was said in Singh (at [45]), when no reasons for the exercise of power are provided, the Court is left to focus on the outcome of the exercise of the power in the factual context presented and assess for itself its justification or intelligibility, bearing in mind it remains for the repository of the power and not the reviewing Court to exercise the power, but to do so according to law.

70    The text of this passage of the transcript reveals issues very similar to the issues that were raised with respect to the previous two requests for adjournment. The Tribunal had identified, from the papers provided, that there were inconsistencies between, on this occasion, what was said by the wife of BKB20 and his account. The reason given for the request for a response by BKB20 was that “[w]e are going through a tough time, we are very upset and we are requesting if we can be given some time to respond”. Later, BKB20 said: “We’re just requesting more time if we can mention things properly”.

71    In the context, BKB20 said: “We are doing it all ourselves, we got no advice or no legal help and we are trying to do whatever we can”.

72    The Tribunal had been told by BKB20 that he was disturbed and there were some things he did not remember, that his wife may have been able to explain things better than BKB20 and that “whatever was written before probably some of it has happened. I don’t recall the dates”.

73    In those circumstances, it was not unreasonable for the Tribunal to conclude that there would be little utility in a further adjournment which, on the basis of what had been said, could only involve a discussion between the two witnesses to deal with the conflict.

74    The hearing which was being undertaken was against the background that the Tribunal was to offer a mechanism for review that is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter. The function of the hearing, conducted under s 425, was to enable the Tribunal to raise issues of concern and permit BKB20 to respond at the hearing. In the context of the nature of the hearing, which was inquisitorial rather than adversarial, the Tribunal was expected to probe and test the claims in order to assess to its satisfaction, as part of the fact-finding function, the veracity of such claims. The nature of the inquiry which was taking place at the time of the request for an adjournment related to versions which had been given at various times. The existence of the inconsistency was a fact which emerged from the evidence.

75    In those circumstances it could not be said that the only reasonable decision available to the Tribunal was to adjourn the hearing. The decision was one which fell within the range of possible and acceptable outcomes.

DISPOSITION

76    For the reasons set out above, the appeal must be dismissed.

77    I will order that the appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

Associate:    

Dated:    13 December 2023