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.