Malecaj v Minister for Immigration and Border Protection

1 The sole ground in this appeal is whether Judge Hartnett erred in finding that a decision of the Migration Review Tribunal was not affected by jurisdictional error on the basis that it was not open to the Tribunal on 31 October 2014 to determine the appellant's application for review without either (a) rescheduling the hearing for the appellant's appearance before the Tribunal under s 362B(2) of the Migration Act 1958 (Cth) ("the Act") or (b) adjourning the review under s 363(1)(b) of the Act. 2 The appellant is a citizen of the United States of America who on 9 April 2013 applied for a Student (Temporary) (Class TU) visa under s 65 of the Act. The application was accompanied by a covering letter from the appellant's migration agent explaining why the appellant was seeking to obtain a student visa. The agent's letter stated: […] Mr. Malecaj decided to undertake an English course as well as an IELTS preparation course in order to improve his English language skills with a view to enhancing his career perspective in the United States of America. Before coming to Australia he worked for a construction company as a salesman. The company he was working for was mainly engaged with the Albanian community in the United States of America and therefore no specific English skills were required for his position. However, the company has decided to expand the business in the United States of America beyond the Albanian community boundaries. Hence Mr Malecaj has a strong interest in improving his English skills as well as undertaking and subsequently passing the internationally recognised IELTS exam which he believes will be invaluable. As per attached documents, his previous employer is willing to welcome Mr Malecaj back to work upon completion of his English course. Please note that Mr Malecaj has advised he decided to undertake the English course here in Australia and not in the United States of America for personal reasons. In fact, he advised that in consequence of the breaking up of his long term relationship he needs to have some time away from his former partner. In light of the above, it is clear that the applicant intends to return to the United States of America upon completion of his English course to continue working for his employer who is willing to reemploy Mr. Malecaj. Moreover the applicant has left his family comprised of his mother, two sisters and two brothers in the United States of America. As a consequence, Mr. Malecaj does not have any relative or family member living here in Australia and therefore there are no personal or economic/business ties with Australia with the exception of the English course he is attending. […] The delegate of the Minister accepted these reasons but refused the application for a student visa on 24 April 2013 because the delegate was not satisfied that the appellant was a genuine student as was required by clause 570.223 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). The decision record recited the appellant's reasons for wanting to undertake the intended course of study in Australia and recorded that the decision-maker accepted that the appellant "would like to study in Australia to improve his English". The application was rejected, however, because the decision-maker considered the appellant's circumstances neither to be "exceptional in nature" nor similar in nature to the policy which was to guide the decision on the application. The decision record went on to note that the appellant was the holder of a United States passport and that by studying in the United States the appellant would not be subjected to international school fees and would have the support of his friends and family. 3 The appellant lodged an application with the Tribunal on 7 May 2013 to review the decision of the Minister's delegate. That application gave the appellant's contact details as an address in Sunshine North, Victoria, and an Australian mobile telephone number. The application to the Tribunal included a copy of the decision record which recorded that the decision-maker had accepted the reasons given by the appellant for wishing to have a visa to study in Australia. It included also a declaration by the appellant that he understood that if he changed his contact details and did not inform the Tribunal of his "new address, the Tribunal may proceed to make a decision" about his case even if the Tribunal could not contact him. On 8 May 2013 the Tribunal sent its acknowledgement of receipt of the appellant's application to the residential address which he had given to the Tribunal as the means by which to contact him. The letter from the Tribunal to the appellant included warnings that it was important to inform the Tribunal immediately if the appellant changed his contact details, such as his residential address, mailing address, telephone number, fax number or email address. The Tribunal also emphasised the importance of it being notified about changes in personal circumstances in a publication which, relevantly, included a statement that an applicant should advise the Tribunal if travelling overseas stating: What if my personal circumstances change? If your personal circumstances, or those of the visa applicant change (such as the visa applicant gets married, divorced, or has a child, or your relationship with the visa applicant changes) and this is relevant to the review of the decision, you should immediately advise the tribunal. If you wish to travel overseas while you have a review application before the tribunal, you should contact the department to ensure that you have the appropriate visa to enable you to return to Australia. If you decide to travel overseas you should advise the tribunal in writing and provide the approximate dates for your travel and your overseas contact details. The Tribunal's acknowledgment of the application for review was accompanied by a receipt of payment by the appellant of $1,540 on 7 May 2013 to lodge the application. 4 The Tribunal was obliged by s 360(1) of the Act to invite the appellant to appear before it to give evidence and to present arguments relating to the issues relating to the decision under review. The Tribunal, however, was not obliged to invite the appellant to appear and to present arguments, relevantly, if it considered that it should decide the review in the appellant's favour (see s 360(2)(a)) or if the appellant had consented to the Tribunal deciding the review without appearing before it (see s 360(2)(b)). In the present case the Tribunal remained obliged to invite the appellant to appear before it because the Tribunal did not consider that it should decide the review in his favour and because the appellant had not consented, nor had he been asked to consent, to the Tribunal deciding the review without appearing before it. 5 The appellant may be assumed to have received the Tribunal's formal written acknowledgment of his application but he did not thereafter receive any communication from the Tribunal for some 17 months after lodging his application on 7 May 2013. On 24 September 2014 the Tribunal wrote to the appellant, at the same residential address he had given in his application, inviting the appellant to appear before the Tribunal on 31 October 2014 at 1.30pm "to give evidence and present arguments relating to the issues" in his case. The appellant was overseas at that time and there is no evidence that he had actually received the letter of 24 September 2014 which had been sent to notify him of the hearing before the date it was scheduled to occur. The Tribunal, for its part, did not hear from the appellant in response to its invitation by letter dated 24 September 2014, but, on 6 October 2014, a member of the Tribunal's staff accessed the appellant's movement details record and became aware that the appellant was not then in Australia and that he had also not been in Australia at the time the Tribunal had written to him sending its invitation that he appear to give evidence and to present arguments in support of his application. 6 The movement details record accessed by the member of staff of the Tribunal on 6 October 2014 disclosed also that the appellant had been granted a travel facility which entitled him to leave and to re-enter Australia lawfully on a bridging visa pending the review of the application by the Tribunal. The bridging visa which had been granted to the appellant had required him to meet the requirements in sub-clause 020.212(2) of the Regulations, which provided: (2) The applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and (b) that application has not been finally determined; and (c) the applicant wishes to leave and re-enter Australia during the processing of that application; and (d) the Minister is satisfied that the applicant's reasons for wishing to do so are substantial. The granting of the bridging visa, in other words, was dependent upon an applicant establishing requirements that the applicant for the bridging visa had in progress another valid application for a substantive visa which had not yet been determined, that the applicant wished both to leave Australia and to re-enter Australia during the processing of that other valid application, and to have satisfied the Minister that the applicant for the bridging visa had substantial reasons for wishing to leave and to re-enter Australia during the processing of his or her pending application. There was no suggestion by the Minister in this appeal that the bridging visa had not been correctly granted to the appellant or that he had failed to meet any of the requirements in sub-clause 020.212(2), including the requirements that the appellant had made an application of the kind contemplated by the requirement in sub-clause (2)(a) which had not yet been determined as contemplated by sub-clause 2(b), that he wished both to leave and to re-enter Australia during the processing of that application as contemplated by the requirement in sub-clause (2)(c), and that the Minister had been satisfied as required by sub-clause 2(d) that the appellant had substantive reasons for wishing both to leave and to re-enter Australia during the processing of his application for the substantive visa. 7 The travel facility granted to the appellant by the bridging visa permitted him to return to Australia at any time before 1 December 2014. The movement details record which was accessed by the Tribunal on 6 October 2014 recorded that the bridging visa was in effect until 1 December 2014. It recorded also that his lawful status as at 6 October 2014 was that he was out of Australia, having departed on 6 August 2014. The movement details record which was accessed by the Tribunal on 6 October 2014 also revealed that the appellant had lawfully departed Australia on a previous occasion and had returned to Australia whilst holding the bridging visa. On 24 and 30 October 2014 the Tribunal attempted to send an SMS to the appellant to "remind" him of the hearing of his application that had been scheduled for 31 October 2014. Both attempts failed and a case note made on each occasion by the Tribunal recorded that the delivery of the SMS "hearing reminder" had failed. 8 On 31 October 2014 the appellant was recorded as a "no show" at the hearing which had been scheduled for the hearing of his application on that day. The Tribunal decided to proceed to make a decision on the application to review the decision pursuant to s 362B without taking any further action to allow or to enable the appellant to appear before it. The Tribunal relevantly said at [12]-[13]: 12 The Tribunal is satisfied that the applicant was invited to appear before the Tribunal to give evidence and present arguments under section 360 of the Act. The Tribunal is satisfied that the applicant was sent a notice under section 360A of the Act giving the day on which, and the time and place at which he was scheduled to appear. The Tribunal is satisfied that the notice met all of the requirements of section 360A. The Tribunal finds that the applicant did not appear before the Tribunal on the scheduled day, at the scheduled time and place. 13 Where an applicant is invited under section 360 to appear before the Tribunal and the applicant does not appear at the scheduled time, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (section 362B). In this case the applicant did not contact the Tribunal to explain why he could not attend the hearing at the scheduled place and time. The Tribunal has therefore decided not to use its discretion to reschedule the applicant's appearance (subsection 362B(2)). The Tribunal will therefore proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it. An application to the Federal Circuit Court to review this decision was dismissed as disclosing no jurisdictional error in the Tribunal's decision. Her Honour said at [17]-[23]: 17 In circumstances where an applicant fails to appear at a hearing to which they have been invited under s.362B of the Act, the Tribunal has a discretion whether to make a decision on the review or to reschedule the applicant's appearance before it. Counsel for the Applicant alleged that the jurisdictional error in this case was of the kind identified in Kaur v Minister for Immigration [2014] FCA 915. The Applicant asserted that it was legally unreasonable for the Tribunal to decide to conclude the review without taking further steps to enable the Applicant to appear before it, or to adjourn the review to enable the Applicant to present oral or written evidence or arguments. 18 The discretion of the Tribunal to make a decision in the Applicant's absence or reschedule the hearing must be exercised within the boundaries of legal reasonableness in accordance with the general principles outlined by the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Hayne, Kiefel and Bell JJ's in their joint decision stated that the exercise of the discretion must be "legal and regular, not arbitrary, vague and fanciful" and may be shown where "no sensible authority acting with due appreciation of its responsibilities" would have exercised the power in that way. The Tribunal does however within the bounds of legal reasonableness, have a "genuinely free discretion". 19 The general principles of legal unreasonableness have been considered and applied by the courts in relation to the exercise by the Tribunal of the discretion conferred by s.362B of the Act. In Kaur v Minister for Immigration [2014] FCA 915 Mortimer J explained that:- "the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances." 20 As Counsel for the First Respondent accurately submitted, the Applicant was on notice of the potential consequence of failing to advise the Tribunal that he was going overseas, and failing to provide his contact details while there, that being that the hearing could proceed without the Applicant in attendance. Despite this, the Applicant did not inform the Tribunal that he was going overseas or provide any differing contact details while away. 21 The Tribunal communicated with the Applicant through all methods of communication available to the Tribunal, those being the postal address provided by the Applicant in the application and the mobile telephone number also provided. The Tribunal, it is agreed by Counsel, is "not obliged by the Act to make some roving inquiry to the end of trying to locate [the applicant]". As submitted by Counsel for the First Respondent and on the facts clearly so, the Applicant never provided any material or written arguments for the Tribunal to consider. The Applicant did not communicate with the Tribunal after making his application. By leaving Australia without advising the Tribunal of his movements or contact details, the Applicant accepted the risk that he was specifically and expressly warned about, and that he had specifically and expressly declared that he was aware of. 22 On an objective consideration of the facts in this case the Tribunal cannot be said to have acted in a way which was legally unreasonable. The Tribunal was not required to adjourn the review in the hope the Applicant might get in touch with the Tribunal should he return to Australia, in particular noting this was an Applicant who did not actively engage in the process of the review. There was no legal error in the processes of the Tribunal given the facts and circumstances described in these reasons for judgment. 23 There is no jurisdictional error in the Tribunal's decision. The application will be dismissed and costs shall follow the event. (emphasis in original) The appellant submitted that her Honour erred in dismissing the application for judicial review and that her Honour ought to have found that the decision under review was affected by jurisdictional error on the basis that it was not open to the Tribunal to conclude the review on 31 October 2014 without either (a) taking further steps to enable the appellant to appear before it or (b) deciding to adjourn the review to enable the appellant to present written evidence or argument. 9 Applications such as the present are concerned with whether the primary decision-maker had the power to act or to decide as it did and not with whether a reviewing court would have acted or decided differently: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [2]-[12], [21], [25], [56]-[62], [92]. In the present case the discretions said not to have been exercised lawfully were those in s 362B(2) and s 363(1)(b) of the Act in the exercise of the Tribunal's jurisdiction to review the adverse decision refusing an application for a student visa. Section 362B(2) gave the Tribunal a discretion to reschedule an appearance by the appellant before the Tribunal and s 363(1)(b) gave the Tribunal a discretion to adjourn its review from time-to-time. The Tribunal correctly found on 31 October 2014 that it had sent the appellant an invitation dated 24 September 2014 to appear at a hearing scheduled for 31 October 2014. It also correctly found that the notice requirements of s 360A had been met and that the appellant had not appeared before it on the day scheduled for the hearing. 10 It was submitted for the appellant that in this case the decision by the Tribunal to proceed to determine the appellant's application on 31 October 2014 was vitiated as being legally unreasonable. The Full Court explained in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 that the review ground of legal unreasonableness is invariably fact dependent and requires consideration of the reasons for decision (where reasons are produced) or the outcome of the decision (where no reasons are produced). At [42]-[45] the Court said: 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. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences. The principles underlying legal unreasonableness 43 The conditioning of a power such as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li, particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J; Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [40] per Gaudron and Gummow JJ; Li at [88]-[92] per Gageler J. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication. 44 In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]): "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason": Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. 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]. 45 In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the Court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable. In Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 Mortimer J subsequently said at [110]-[111]: 110 In Singh, the Full Court identified two different analyses which might be applied in such a circumstance. If the repository of the power had given no reasons for the outcome, then the supervising court can only focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome, bearing in mind the constraints applicable to the role of a supervising court. If the repository of the power has given reasons, then it is the justification given in the reasons, and the intelligibility of the exercise of power as explained in the reasons, which the supervising court should examine, bearing in mind the constraints applicable to that task. Limiting the examination to the reasons given by the repository of the power is consistent with the approach taken to the role of reasons generally in assessing jurisdictional error: namely, that reasons enable a supervising court to see what the repository of the power herself or himself saw as relevant, irrelevant, or as her or his statutory task. In deciding whether there was an excess of jurisdiction, this is the perspective which is important, understanding why the power was exercised as it was: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ. Where there are reasons given by a repository of the power, which are not sufficient to provide an intelligible justification, for a supervising court to engage in finding and applying facts and reaching its own conclusions about how and why, through a different reasoning process, the exercise of power could be justified is tantamount to a re-exercise of the power by the supervising court and in my opinion crosses the line, well established in Australian law, between a review of the exercise of a power and the exercise of it, as described by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38. 111 In the present case, the Tribunal gave no reasons for the exercise of power under s 362B, and the parties did not submit otherwise. The Minister submitted that no "adverse inference" can be drawn from the fact the Tribunal did not explain why it proceeded to make the decision on review, because s 368 did not require the Tribunal to set out its reasons for this decision. Reliance was placed on SZHSQ at [60]. The proposition that neither s 430 (in relation to the Refugee Review Tribunal, which was the subject matter of SZHSQ) nor s 368 (in relation to the Migration Review Tribunal) extend beyond an obligation to give reasons for the decision on review itself, rather than discretions exercised as part of the review, is well established. That proposition adds nothing to the legal questions raised in this case. Although the Tribunal may not have been obliged by the Act to give reasons, its failure to do so leaves the exercise of power unexplained so far as a reviewing court is concerned. The absence of an explanation by the repository of the power means the supervising court must, as the Full Court observed in Singh, focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome, bearing in mind the constraints applicable to the role of a supervising court. There is no occasion for "adverse inferences" to be drawn, such language is a distraction from the court's task. The Tribunal was not obliged to determine the application on 31 October 2014. It had a discretion under s 362B(2) to reschedule the appellant's appearance but the Tribunal decided not to do so and gave as its reason for not doing so that "the applicant did not contact the Tribunal to explain why he could not attend the hearing at the scheduled place and time". The Tribunal gave no reason for not exercising its discretion to adjourn its review of the appellant's application under the general power in s 363(1)(b) of the Act. It is, therefore, necessary to consider the Tribunal's reason for not exercising its discretion under s 362B(2) and to consider the outcome of not adjourning the review under s 363(1)(b). 11 The Tribunal was required to exercise its discretions justly and fairly. In Minister for Immigration v Li (2013) 249 CLR 332 it was said in the joint judgment at [58] that what is just and fair requires consideration of the purpose of the provision and the purpose of surrounding provisions. The jurisdiction being exercised by the Tribunal in this case was that of considering the appellant's application to review the decision of the Minister's delegate refusing his application for a visa. In that context the Tribunal had a duty imposed upon it by s 360(1) to invite the appellant to appear before it. That invitation was required to be meaningful in the sense of providing the appellant with a real chance to present his case. The joint judgment at [61] said: Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture (140) and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty. (footnotes omitted) The Tribunal in this case did not knowingly schedule a hearing on a date which would not permit the appellant to attend the hearing to which he was invited by the Tribunal, nor had the Tribunal been informed by the appellant that he could not attend on the date which had been scheduled for the hearing. The Tribunal had unknowingly chosen a date on which the appellant was unable to attend to present his case, but the Tribunal came to be aware that the date which it had chosen was a date that the appellant would not attend because he was lawfully, temporarily and for a short term, absent from Australia. 12 The Tribunal is "not obliged by the Act to make some roving inquiry to the end of trying to locate" an applicant: Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [25]. Murphy J correctly observed in SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231 at [42] that "the regime for determining visa applications would soon come to a grinding halt if the review process could be stopped simply by an applicant refusing or failing to attend interviews and/or hearings". Applicants, such as the appellant, are reasonably advised by the Tribunal of the need to ensure that contact details are up to date and that they are otherwise at risk of the Tribunal deciding an application in the applicant's absence: see Singh v Minister for Immigration and Border Protection [2015] FCA 138 at [15]-[16]. It may be accepted that the appellant should have informed, but did not inform, the Tribunal of the fact that he would be absent from Australia during a period which included the date chosen by the Tribunal to conduct the hearing of his application. But the question is not whether the appellant failed to inform the Tribunal of his absence but, rather, whether the Tribunal lawfully exercised its discretion in the particular circumstances of deciding neither to reschedule the appearance under s 362B(2) nor to adjourn the review under s 363(1)(b) in light of the facts which were known to the Tribunal when it exercised its discretion. 13 The task of determining whether the Tribunal exercised its discretion under s 362A(2) within power requires the decision to be evaluated and a conclusion reached about whether the decision has the character of being unreasonable. In Stretton, Allsop CJ said at [11]-[13]: 11 The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 13 The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power. The duty of the Tribunal when considering the exercise of the discretion in s 362A(2) was to give the appellant a meaningful invitation to appear at a hearing to give evidence and to present arguments. The only reason given by the Tribunal for deciding not to exercise its discretion to reschedule the appellant's hearing under s 362A(2) was that the appellant had not contacted the Tribunal to explain why he could not attend the hearing at the scheduled place and time. It is, of course, true that the appellant did not contact the Tribunal to explain why he could not attend the hearing, but the Tribunal knew on 31 October 2014 why the appellant could not attend on that day. By 6 October 2014 the Tribunal had become aware that the appellant was absent from Australia lawfully, temporarily and for a short term. The Tribunal knew by 6 October 2014 that the appellant was out of Australia pursuant to a bridging visa for which he had to satisfy a number of conditions including that he had previously made an application of a kind being considered by the Tribunal, that the application had not finally been determined, and that he wished both to leave and to re-enter Australia during the processing of that application. The Tribunal became aware on 24 October 2014 that its attempt to contact the appellant by SMS on that day had failed. The Tribunal became aware on 30 October 2014 that a second attempt to contact the appellant on that day about the hearing by SMS had also failed. The Tribunal continued to know that the appellant was absent from Australia pursuant to a bridging visa that was conditional upon him wishing both to leave and to re-enter Australia during the processing of his other pending application, that he had previously satisfied the Minister of having substantial reasons for wishing to leave and to re-enter Australia during the processing of his application, and that he had previously left and re-entered Australia under a bridging visa. 14 The Tribunal knew also that the decision-maker had accepted the appellant's reasons for wanting the visa, that the Tribunal had not contacted the appellant for the 17 months which had elapsed between the application to the Tribunal and the letter of invitation from the Tribunal, and that the appellant was required to give effect to his apparent intention of re-entering Australia by returning by 1 December 2014. It may be accepted that the appellant ought to have informed the Tribunal that he was not going to be in Australia between 6 August and the date of his return on or before 1 December 2014, but the appellant's failure to inform the Tribunal of his absence did not disentitle him to a meaningful invitation to be heard and to the proper exercise by the Tribunal of its discretion to determine whether to reschedule the hearing once it became aware that the reason he could not appear on the date scheduled for the hearing was that he was not in Australia on the scheduled date. The appellant's failure to have informed the Tribunal of the absence from Australia may, as was submitted by the Minister, have impaired the ability of the Tribunal effectively to communicate with the appellant, but the Tribunal came to know that the appellant could not attend the hearing on 31 October 2014 because he was absent from Australia and the Tribunal on 31 October 2014 could reasonably assume that he would re-enter Australia by 1 December 2014 and would be able to attend a hearing scheduled thereafter. The Tribunal knew, in other words, that the appellant's reason for not being able to attend on 31 October 2014 was that he had left Australia and that his absence was lawful, temporary and short-term. The Tribunal's decision to exercise its discretion under s 362B(2) by not rescheduling the hearing in those circumstances was unreasonable because it prevented the Tribunal from discharging its duty of providing the appellant with a meaningful invitation, in the sense of providing him with a real chance to present his case, once the Tribunal knew that the appellant was lawfully, temporarily and for a short term absent from Australia pursuant to a bridging visa during the period from the time when the Tribunal sent its letter of invitation on 24 September 2014 to the date of the hearing fixed for 31 October 2014. Her Honour erred in holding that the Tribunal could not be said to have acted in a way that was legally unreasonable. The duty cast upon the Tribunal was not determined against the appellant by his failure to communicate with the Tribunal after making his application. The 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. The appellant may correctly be said, as her Honour said at [21], to have accepted the risk that he was specifically and expressly warned, but that did not alone remove the duty upon the Tribunal to provide the appellant with a meaningful hearing. In the discharge of that duty the Tribunal was bound, at least, to consider the risk accepted by the appellant together with the other facts then known to the Tribunal bearing upon the specific issue before the Tribunal on 31 October 2014, namely, whether the invitation it had given him was meaningful on the facts known to the Tribunal or was required to be rescheduled for the Tribunal to fulfil its statutory duty. 15 It may not be necessary to consider also the appellant's contentions that the Tribunal failed to exercise its discretion to adjourn the hearing pursuant to s 363(1)(b), however, it is desirable to consider briefly this aspect of the appeal. The Full Court in Singh observed at [51] that it was "not difficult to see the overlap between the obligation in s 360 and the exercise of the adjournment discretion in s 363". In the joint judgment in Li their Honours said at [63]-[66]: An unreasonable exercise of discretion? 63 Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. 64 A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of "Wednesbury unreasonableness" in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development. 65 In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the sixteenth century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case, in which it was stated that the discretion of commissioners of sewers "ought to be limited and bound with the rule of reason and law". 66 This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, 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. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. (footnotes omitted) The Tribunal did not give reasons for not adjourning the review under that provision and appears not to have considered whether to exercise that discretion in the circumstances existing on 31 October 2014 as known to the Tribunal. 16 The absence of a reason for not adjourning the review under s 363(1)(b) requires attention upon the outcome of any supposed exercise of power in its factual context and for the Court to evaluate for itself the justification or intelligibility of that outcome: see Kaur at [110]. In Singh the Full Court said at [45]: In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the Court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable. In Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Dixon J said, in respect of the disallowance by the Commissioner of Taxation of objections without reasons, at 359-60: The commissioner disallowed the objections. He gave no reasons and it does not appear what view of the facts he took or whether he took any other view of the law than that upon which the objections rested. I myself am prepared to accept the explanation given before me of the purported minute of the supposed meeting of directors of 29th June 1944 and I am prepared to accept the evidence that before the end of the year of income no entry was made in any share register of the company of the names of the transferees pursuant to the transfers of 14th June 1944. But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. (emphasis added) The application of this test does not require the Court to be certain of the precise particular in which the Tribunal in this case may have gone wrong in the failure to exercise the discretion conferred by s 363(1)(b), provided that it can be seen "that in some way [the Tribunal] must have failed in the discharge of [its] exact function according to law". The outcome in this case of the Tribunal not adjourning the hearing on 31 October 2014 denied the appellant a real chance to present his case in the particular circumstance in which the appellant had sought a review of an adverse decision. The Tribunal knew that the appellant was unable to attend the hearing on the date selected by the Tribunal because the Tribunal knew that he was lawfully absent temporarily from Australia for a short term pursuant to a bridging visa contemplating such absence from Australia. That outcome on the material before the Tribunal is capable of explanation only on the ground of a failure to consider whether the Tribunal's invitation dated 24 September 2014, on the facts known to the Tribunal on 31 October 2014 (and without the Tribunal needing to have made any further inquiries), had been meaningful in the sense of having provided to the appellant a real chance to present his case. 17 Accordingly, the appeal will be allowed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.