Before this Court
17 At the hearing of this appeal, leave was sought, not opposed by the Minister and granted for the appellant to file and rely upon an amended notice of appeal in the following terms:
1. The primary judge erred by either misinterpreting, misunderstanding, or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the decision by the Tribunal on 25 July 2014 at AB 191, to refuse the appellant an adjournment or to invite the appellant to a further hearing, to present evidence and arguments, regarding the steps she had taken to obtain sponsors for the grant of a Temporary Business Entry (Class UC)(subclass 457)(457 visa).
a) At [18] of the judgement [sic]: "Whether or not the applicant had given evidence that was relevant to assessing whether the applicant would be able to secure an alternative sponsor, and the time by which she would be able to do so, are matters that were relevant to the Tribunal's exercise of the discretion conferred by s.363(1)(b) of the Act. It was relevant to the objective of providing an economical and quick review. It was also relevant to conducting the review itself; the Tribunal had to be satisfied that it would be able to review the decision within some finite time. It could not be so satisfied unless there was some basis for concluding that at some point in the future the Tribunal would be able to review the application before it."
b) At [19]: "[Given that it was relevant to the exercise of the Tribunal's power under s.363(1)(b) of the Act to consider whether the applicant would be able to obtain an alternative sponsor, and the time by which the applicant would be able to do so, the next question is whether it was reasonably open to the Tribunal to conclude that the applicant did not provide sufficient evidence to enable the Tribunal to conclude that the applicant would be able to obtain an alternative sponsor in the foreseeable future.] In my opinion, it was reasonably open to the Tribunal to so conclude, and for the reasons it gave. The applicant did not identify the name of the two employers the applicant claimed would sponsor her, she did not specify when the applicant was interviewed by the two employers whom she claimed were willing to actually apply to sponsor the applicant, and if so by when the applicant anticipated a nomination would be made and, if the employers were not standard business sponsors, by when the applicant expected the employers to make such applications."
c) At [20]: "The applicant submits the duty to act reasonably required the Tribunal to invite the applicant to a further hearing, and, at that hearing, question the applicant about the steps she had taken to obtain alternative sponsors, and the time by which she expected to do that. I do not agree with that submission. It was for the applicant to put before the Tribunal the evidence and submissions on which she relied for seeking the adjournment. There is nothing in the material that could reasonably suggest the applicant expected, or had reasonable grounds for expecting, that she would be given an opportunity to be heard before the Tribunal made a decision on the applicant's request for an adjournment. It was the applicant who was seeking the adjournment; and it was for the applicant to put before the Tribunal the material she submitted ought to have reasonably led the Tribunal to grant the adjournment she sought."
d) At [21]: "Even if, contrary to my conclusion, the Tribunal was required to provide the applicant a hearing before it could reasonably have made a decision on the adjournment application, the question would have arisen about whether the applicant would be entitled to any relief." […]
18 The paragraphs of the primary judge's reasons reproduced above as particulars to the amended notice of appeal, with the omitted part of [19] reinserted in square brackets, are those which contain the nub of his Honour's decision, and with the balance of [21] remaining omitted.
19 The complaint made about the first sentence of [21] of the primary judge's reasons could only have arisen for consideration in the event the primary argument on appeal succeeded. That is because that sentence and indeed that entire paragraph entailed the primary judge providing an alternative basis for the conclusion that his Honour reached. It is not necessary to consider that alternative reasoning in light of the conclusions reached as to his Honour's primary reasoning.
20 The substance of the complaint made in written and oral submissions made on behalf of the appellant was that his Honour had erred by misinterpreting, misunderstanding or misapplying the applicable law or had otherwise failed to ask the correct question as to whether it was reasonably open for the Tribunal to conclude that the appellant did not provide sufficient evidence to enable the Tribunal to conclude that she would be able to obtain an alternative sponsor in the foreseeable future. These complaints are styled as though the issue was one of jurisdictional error on the part of the primary judge. However, as was raised with counsel at the hearing of the appeal, what the appellant needed to establish was error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal. That required more than arguments directed to showing how the Tribunal could have handled the adjournment application differently or other steps that it might have taken to get further information from the appellant. Unless the Tribunal proceeded in a manner that was sufficiently unreasonable as not to constitute the proper exercise of jurisdiction, the sorts of considerations raised on behalf of the appellant do not even amount to legal error, let alone jurisdictional error.
21 Counsel asserted that the duty to act reasonably required the Tribunal, I infer as a matter of procedural fairness going to the proper exercise of jurisdiction, not just to decide the application for an adjournment upon the basis of the material that she had advanced for that to take place, but to go much further. It was asserted that the Tribunal was obliged, in considering an adjournment application in which the possibility of a further sponsorship was raised with little in the way of detail, to invite the appellant to a further hearing. It was also asserted that the Tribunal was required at such further hearing in some way to cause the appellant to present evidence and arguments about the steps she had taken to obtain alternative sponsors and the time by which she expected to do that. It also seemed to be suggested that, in the alternative, the Tribunal was required to take steps to ensure that a similar outcome was achieved by way of it seeking the provision of further documents to it by the appellant.
22 At a later point of the appeal hearing, apparently abandoning the previously expressed alternative of further information being obtained in documentary form rather than by way of a further hearing to address the adjournment application made by telephone on them by email, it was effectively submitted on behalf of the appellant that nothing short of a further hearing was required to consider properly the application to delay making the decision.
23 It was submitted that if the appellant had been granted time to provide further information or ultimately invited to a hearing, she may have been in a position to provide to the Tribunal the missing information identified by the primary judge. The appellant complained that the Tribunal drew a conclusion without giving her an opportunity to be heard or to present evidence and arguments on the status of her new nomination, and that the primary judge correspondingly erred in not finding this to be a judicially reviewable error.
24 None of the above asserted obligations rise above suggestions as to how the Tribunal could have handled the adjournment application differently. Doubtless the Tribunal could have done those things, but it is a very different proposition to suggest that it was compelled to do so as a matter of the proper and necessary exercise of jurisdiction.
25 It was also suggested on behalf of the appellant that the Tribunal, in carrying out its function in accordance with s 353 of the Migration Act to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick", had "placed too much weight on informal and quick and insufficient weight on the principles of fairness and the just". Such a balancing exercise in relation to such facultative provisions is precisely the sort of procedural decision-making that is expressly reposed in the Tribunal. Such provisions are subordinate to acting in accordance with the law as set out in the Migration Act. This includes the exercise of powers and discretions, subject to this Court and the Federal Circuit Court having a limited and confined supervisory role, not a fact finding and decision-making role. See Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445-8 [43]-[52], especially [49].
26 It will often be the case that the overarching statutory mandate as to how the Tribunal is required to go about its merits review task will involve considerations that stress against one another and require compromise and balance. Something more than pointing to the possibility of a different weighting of the competing considerations is required to demonstrate that the Tribunal in some way misconceived or failed to exercise its jurisdiction properly.
27 The test of legal unreasonableness is inherently difficult to meet in circumstances such as these, with a keen appreciation of the limitations on judicial review, especially when it is confined to jurisdictional error, or appellate supervision of the finding of such error. As Allsop CJ pithily observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at 5 [8]:
The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court's function is a supervisory one as to legality: see Li at [30], [66] and [105].
28 It was submitted on behalf of the appellant that the primary judge was "plainly wrong" to conclude that there was nothing in the email sent by the appellant on 10 July 2014 to suggest that the appellant had reasonable grounds to be heard further on her adjournment application. Again, no such error on the part of his Honour is apparent. Nothing was identified as expressly or by reasonable implication giving rise to any expectation, let alone a reasonable expectation, that the Tribunal would do anything more than consider and decide upon the appellant's adjournment application as it had been presented.
29 It was submitted that the reference to the appellant having applied for other jobs and attending interviews and finding prospective employers who were willing to sponsor her was "enough to trigger the obligations of the Tribunal under the procedural fairness grounds of the Migration Act … to request more information or to invite the appellant to a hearing to report any adverse concerns to her and to allow her to present evidence and arguments in response". The response to that suggestion is, as detailed further below, that the statutory obligations apparently relied upon simply do not apply to the present situation. Counsel for the appellant chose not to respond to or address the Minister's written submissions to that effect.
30 In supplementary written submissions for the Minister responding to the late-filed written submissions for the appellant, it was submitted that the primary judge's reasoning disclosed no appellable error. After setting out the history of the appellant's contact with the Tribunal, those submissions provided clear, concise and cogent reasons why the appellant's case was without any proper foundation. I agree with those submissions which I restate below in summary form, and supplement.
31 It was for the appellant to give sufficient detail and evidence in support of her adjournment request. The Tribunal was under no obligation to make enquiries in that regard. The Tribunal considered the appellant's request for more time and found what was stated in support to be "vague and lacking in detail". That characterisation by the Tribunal of the appellant's 10 July 2014 email was a conclusion it was entitled to reach. The Tribunal was therefore entitled not to be satisfied that the appellant would have an approved nomination in the reasonably foreseeable future. That too was a conclusion fairly open to the Tribunal. The primary judge did not err in finding that was so.
32 The Tribunal's reasons demonstrate that it gave "independent, active consideration" to the appellant's request for further time: cf Singh at 449-450 [65], in which that necessary process of consideration was found to be lacking in the circumstances of that case. In Singh, what was sought was a short adjournment for a specific purpose of ascertaining whether a prior English-language test was accurate. There was, objectively, a reasonable basis to believe that the prior test may not have been an accurate reflection of the visa applicant's performance. The tests allowing for a re-mark were conducted frequently and were unlikely to be long or complex. Accordingly there was a high degree of certainty as to when this would take place and how long it would take. The visa applicant was not requesting an opportunity to sit another test or to bring in an entirely new basis for the grant of the visa he was seeking. All of those features are notably lacking from the present appellant's case.
33 The decision not to grant the appellant more time by the exercise of the adjournment power conferred by s 363(1)(b) was fairly open to the Tribunal on the material before it and was not one that lacked "an evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 367 [76].
34 There was no obligation on the Tribunal to invite the appellant to a further hearing. Section 360(1) of the Migration Act requires the Tribunal, in certain circumstances, to invite a review applicant to appear before it to give evidence and present arguments on the issues arising in relation to the decision under review. In Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489, the High Court considered this issue in relation to the mirror provision to s 360 in s 425 of the Migration Act and said at 505 [51]:
Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, [the visa applicant's] evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL …
35 The reasoning in SZKTI applies to this appeal. The appellant's request for more time on the basis that she had "tried to apply for another jobs and I got three interviews and out of those two of them can sponsor me and put my file for a new nomination" did not raise any new issue in the sense referred to in s 360(1) of the Migration Act such as to trigger any obligation on the part of the Tribunal to give another hearing. The existing issue was whether the appellant had an approved nomination. She must have been well aware that this was an issue both by reason of the correspondence prior to the Tribunal hearing referred to above and by reason of what transpired at that hearing itself. That also included the delay that the Tribunal granted at her request pending the determination of the existing nomination review. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 162-3 [33]-[35].
36 The Tribunal was under no obligation to put any "information" to the appellant pursuant to ss 359A or 359AA of the Migration Act. The information about the appellant's efforts to obtain a new sponsor and lodge a new nomination application was excluded from the operation of s 359A as it was information that the appellant gave for the purpose of the application for review: see s 359A(4)(b).
37 In any event, "information" for the purposes of s 359A does not include the existence of doubts, inconsistencies or the absence of evidence which are the subject of the mental processes of the Tribunal member: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 [18]. In that paragraph, the majority held that Finn and Stone JJ had correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477 that the word "information" does not "encompass the Tribunal's subjective appraisals, full processes or determinations … Nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc …".
38 It follows from the foregoing that I reject the suggestion made on behalf of the appellant that the Tribunal had any obligation to invite her to a second hearing or to provide her with a further opportunity to address the Tribunal on the basis of her indication that she wanted to apply for another nomination with a new employer. In any event, there is no basis for such an obligation in Division 5 Part 5 of the Migration Act, which is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with: see s 375A.
39 Even if that exhaustive statement did not extend to the present situation, there was no procedural unfairness in not inviting the appellant to attend a further hearing for the purposes of determining whether the adjournment or delay in making a decision ought to be granted: see Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [61]-[66]. She was given an opportunity to put her request in writing. The reasons she advanced were found to be insufficient to warrant the request being granted. Given the content of the request, that was an entirely reasonable conclusion for the Tribunal to reach. The Tribunal was not required to do anything more in the circumstances of this case. It follows that the primary judge did not err in finding no error on the part of the Tribunal, let alone jurisdictional error.
40 As no proper ground of appeal has been raised, much less established, the appeal must be dismissed with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.