Consideration and disposition of the appeal
29 As noted above, SZVFW Full Court was one of the authorities referred to by the primary judge at [37] as summarising general principles relating to the ground of judicial review of unreasonableness in the legal sense.
30 This decision was subsequently reversed on appeal by the High Court (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW High Court). I do not consider that the High Court disapproved of any of the general principles which are set out in the extract from SZVFW Full Court at [37] of the primary judge's reasons for judgment. Rather, the appeal succeeded on the ground that the Full Court had erred because, instead of determining for itself whether the decision of the Refugee Review Tribunal (RRT) in that case was legally unreasonable and whether the primary judge's reasoning for finding to the contrary was correct, the Full Court had deferred to what the primary judge had held in the judicial review proceeding below (see at [18] per Kiefel CJ, [55]-[56] per Gageler J, [117] per Nettle and Gordon JJ and [154]-[155] per Edelman J). The High Court held that the Full Court also erred in not finding that the RRT's decision to proceed to make a decision without taking any further action to allow the respondents to appear was not, in the particular circumstances, legally unreasonable.
31 SZVFW High Court is relevant in the following respects. First, the decision reaffirms that the question whether or not an administrative decision is unreasonable requires close attention to be given to the scope, purpose and objects of the statutory source of the power under which the decision was made (at [54] per Gageler J, at [79] per Nettle and Gordon JJ, and at [135] Edelman J).
32 Secondly, there is implicit affirmation of what the Full Court had said in Singh at [47] and [48] per Allsop CJ, Robertson and Mortimer JJ, namely:
(1) that legal unreasonableness is "invariably fact dependent and requires a careful evaluation of the evidence";
(2) this involves applying the relevant general principles to the particular factual circumstances of the case and not an analysis of factual similarities or differences between individual cases;
(3) where reasons are provided, they are "the focal point for the assessment" (noting that reasons were provided by the Tribunal in Li but were very limited in contrast with those which were provided in SZVFW High Court); and
(4) where the reasons disclose a justification for the exercise of a statutory power, only rarely would a Court find that the exercise of a discretionary power was unreasonable (see at [84] per Nettle and Gordon JJ).
33 It is desirable to say something more about the significance of the fact that a decision-maker has provided reasons as to why a discretionary power was exercised in a particular way. As noted above, in those circumstances, the reasons are "the focal point for the assessment" of legal unreasonableness. Does that mean, however, that the supervising court is confined to assessing those reasons in determining whether or not there is legal unreasonableness? In Singh, the Full Court, without determining the matter, stated the following at [47]:
… Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
34 At first glance, it might be thought that a broader view was taken by at least three of the Justices in SZVFW High Court. In explaining why the Refugee Review Tribunal's decision there to proceed under s 426A of the Act was not legally unreasonable, Nettle and Gordon JJ referred not only to the reasons given by the Tribunal in support of its decision, but at [121] and [122] their Honours identified additional reasons as to why the Tribunal's decision was not legally unreasonable. Similarly, Edelman J at [141] identified three further reasons, additional to those given by the Tribunal, as to why its decision was not legally unreasonable.
35 The obiter observations in both Singh and by these three Justices in SZVFW High Court are not, however, irreconcilable. The observations of the Full Court in Singh were directed to the question whether or not the reasons given by the decision-maker disclose an intelligible justification for the exercise of power. If they do not, the process of decision-making may reveal jurisdictional error. If the reasons do provide an intelligible justification for the exercise of the power, legal unreasonableness is unlikely to be found, unless the ultimate exercise of the power itself is legally unreasonable, but that will be rare. Having regard to the approach of the three Justices in SZVFW High Court, where the reasons do disclose an intelligible justification for the exercise of the power, the judicial review court may point to additional reasons which were not relied upon by the primary decision-maker as reinforcing the court's finding that there was no unreasonableness in the legal sense. A court exercising judicial review jurisdiction is not, however, entitled to replace a primary decision-maker's reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker. That would involve a transgression of the proper limits of judicial review. Those limits are not transgressed, however, where the judicial review court finds that the reasons given by the decision-maker do provide an intelligible justification, a conclusion which is then reinforced by additional reasons which could have been relied upon by the decision-maker but were not.
36 There is a further relevant principle which warrants emphasis. It is well established that where judicial review jurisdiction is being exercised in relation to an administrative decision and a decision-maker has provided reasons for the decision, the court must be wary of turning a review of those reasons upon proper principles of judicial review into a reconsideration of the merits of the decision. As the High Court plurality stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, "… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". In assessing whether such reasons disclose an intelligible justification for the exercise of the power, the propositions expressed in Wu Shan Liang need to be borne in mind.
37 It is also well established that a statutory discretionary power contains an area of decisional freedom (see, for example, Li at [28] per French CJ and at [66] per Hayne, Kiefel and Bell JJ). The "courts will not lightly interfere with the exercise of a statutory power involving an area of discretion", and an important question "is where that area lies" (see SZVFW High Court at [11] per Kiefel CJ). As Gageler J stated in SZVFW High Court at [58], a judicial review should not enter the zone of discretion committed to the administrator, by the judicial review judge forming his or her own conclusion (see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [21] per Allsop CJ and at [76] per Griffiths J). In applying a standard of legal reasonableness the Court should not substitute the Court's view as to how a discretion should be exercised for that of the decision-maker. Moreover, depending upon the terms of the relevant discretionary power, the decision-maker will generally have "a degree of latitude in determining what is fair and just in a given case" (SZVFW High Court at [13] per Kiefel CJ). More recently, the High Court has described the standard of legal unreasonableness which is implied as a condition of the exercise of a statutory power as "a demanding standard" (see TTY167 v Republic of Nauru [2018] HCA 61 (TTY167) at [24] per Gageler, Nettle and Edelman JJ).
38 Applying the principles established in authorities such as Li, Singh, Stretton, SZVFW High Court, TTY167 and Wu Shan Liang, I will first summarise the key statutory provisions which bear upon the question of unreasonableness before turning to consider the relevant primary factual features in this particular case.
39 Where an application for review is properly made to the AAT under s 347 of the Migration Act 1958 (Cth) (Migration Act), the AAT has a statutory obligation under s 348 to review the decision the subject of the review application (subject to an exception in s 348(2) which is not relevant here). In the particular case here, the purpose of the AAT's review was to determine whether or not the respondents should be granted a 457 visa under s 65 of the Migration Act.
40 In reviewing a Part 5 - reviewable decision, the AAT is empowered to exercise all the powers and discretions that are conferred by the Migration Act on the primary decision-maker (s 349(1)). The AAT is empowered to affirm the primary decision or vary it or do one of the other things specified in s 349(2). The legislation does not expressly impose any particular period within which the AAT is to make a decision, either from the time when the review application is lodged or from the time when the AAT conducts a hearing in the circumstances set out in s 360. The timing of the making of a decision is left to the AAT to determine, within the framework of the statutory provisions which affect the discharge of its review function, and subject to judicial review by the Court. Where the AAT makes its decision on a review (other than an oral decision), the Tribunal is obliged to comply with the relevant requirements in s 368, including making a written statement which sets out the specified matters and records the day and time the statement is made. It is then provided in s 368(2) that a decision on a review (other than an oral decision) is taken to have been made by the making of the written statement and on the day, and at the time, the written statement is made. Where a decision on a review is given orally by the Tribunal, s 368D applies. It provides that the decision is taken to have been made, and notified to the review applicant, on the day and at the time the decision is given orally.
41 There is an express power conferred upon the AAT to adjourn the review from time to time (s 363(1)(b)).
42 There is some ambiguity as to whether the AAT in this case dealt with the respondents' request as an application for an adjournment or as a request for the AAT to defer the making of a final decision. The ambiguity is evident in [10] where reference is made to Mr Haq requesting the AAT to "postpone making its decision on his visa application for 4 weeks"; the reference at the beginning of [13] to the AAT having power under s 363(1)(b) of the Act to "adjourn a review"; and its reference at the end of [14] to its conclusion that it did not consider that it was appropriate to "postpone making its decision". There was no contest between the parties that the resolution of the appeal did not turn on whether the AAT had determined not to adjourn the hearing, as opposed to determining that it would not delay the making of a final decision. I will proceed on the basis that the AAT adopted the latter course.
43 The AAT was obliged to conduct its review of the delegate's decision in accordance with any relevant provisions of both the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Divisions 4 and 5 of Pt 5 of the Migration Act contain various provisions relating to the AAT's powers and the conduct of a review of a "Part 5 - reviewable decision" (as defined in s 338).
44 In reviewing a Part 5 - reviewable decision, the AAT is not bound by technicalities, legal forms or rules of evidence and is obliged to act "according to substantial justice and the merits of the case" (s 353). Section 357A provides that Div 5 of Pt 5 is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with and that, in applying that Division, the AAT "must act in a way that is fair and just" (see also s 2A of the AAT Act). Under s 358, an applicant for review may give the AAT a written statement in relation to any matter or fact that the applicant wishes the AAT to consider. Under s 360, the AAT is obliged to invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, subject to exceptions set out therein.
45 Turning now to the relevant particular facts and circumstances of this case, the following matters are significant.
(1) The respondents (and their then migration agent) were on notice from the time they received the AAT's letters dated 22 July 2015 and 10 August 2016 that they could provide additional evidentiary material in support of their review application. Moreover, the notification which was sent to the migration agent on 10 August 2016 informed the respondents that the AAT was unable to make a favourable decision on the available material and that a hearing would be conducted on 30 September 2016 (i.e. more than seven weeks later).
(2) The 22 July 2015 letter did not set a finite deadline for providing any additional material, but it urged the respondents to do so "as soon as possible". In substance, it was an open invitation to provide information as soon as possible, but before the hearing. The 10 August 2016 letter contained a request that any additional documents or information which the respondents wished to rely on at the hearing scheduled for 30 September 2016 be provided to the AAT by 23 September 2016. The respondents were on clear notice that they could provide additional documents or information in support of their case. I see no reason why that notice did not extend to any request by them that the AAT defer making a decision on their review application for another four weeks.
(3) The respondents provided no additional written material prior to the hearing (other than Mr Haq's written request dated 29 September 2016 for an extension of time), including any material which corroborated Mr Haq's oral evidence given to the AAT on 30 September 2016 regarding the prospects of his employment with the Red Steer.
(4) Mr Haq had known for at least "a few months" that A1 Hotel Group would not be supporting his 457 visa application. Moreover, in light of the numerous uncertainties and imponderables surrounding the possibility that the Red Steer might support him which are described in [12] of the AAT's reasons (see [18] above) it was reasonably open to the AAT to find at [14] that it was uncertain if and when:
(i) Mr Haq would be offered employment with the Red Steer;
(ii) a nomination application would be lodged with the Department; and
(iii) Mr Haq would become the subject of an approved business nomination.
(5) As the AAT also noted at [14], Mr Haq provided no statement or evidence from the Red Steer which supported his claims.
(6) Mr Haq was well aware that unless he had a sponsor/nomination, his review application was unlikely to be successful, as he explicitly acknowledged in his letter dated 29 September 2016.
46 In my respectful view, the AAT's reasons, which provide the focus for an assessment of legal unreasonableness, do disclose an intelligible and rational justification for not deferring the making of a decision on the review application. The relevant reasons are set out at [18] above. In brief, the AAT reasoned that:
(1) As Mr Haq himself had acknowledged, it was uncertain if and when he would become the subject of an approved nomination. Such uncertainty flowed from the fact that Mr Haq had known for some months that A1 Hotel would no longer sponsor him, and that Red Steer had not yet made any reference check nor provided him with a letter of offer of employment. Nor had Red Steer lodged a new nomination application. Red Steer was merely "thinking about" offering him employment.
(2) Although the AAT had a discretion to allow Mr Haq additional time in which to provide further evidence, it was not obliged to do so. In determining whether it should exercise its discretion in Mr Haq's favour, a relevant matter was whether an approved nomination made by an approved sponsor was "likely to be forthcoming", whether Mr Haq had had a fair opportunity to provide the relevant information or documentation, any previous adjournment requests, and the significance of the information or documents to Mr Haq. It might be interpolated that it is evident from this last reference that the AAT was conscious of the fact that the consequence for Mr Haq of not having an approved sponsor and nomination would be that the AAT would dismiss his review application on the basis that he did not satisfy the relevant criteria at the time of the AAT's decision.
(3) Mr Haq was on notice from the AAT's letters dated 22 July 2015 and 10 August 2016 that he had the opportunity to provide any additional documents or information which he intended to rely upon at the AAT hearing, and none was provided.
(4) Relying on Mr Haq's oral evidence before the AAT, it was uncertain if and when any of the following matters would occur:
(i) Red Steer would offer him employment;
(ii) a nomination application would be lodged with the Department; or
(iii) Mr Haq would become the subject of an approved business nomination.
(5) No statement or oral evidence had been provided to the AAT from a representative of Red Steer.
(6) Having regard to all the circumstances of the case, the AAT considered that Mr Haq had had sufficient time to obtain evidence of the lodgement of a nomination application by Red Steer to justify his request that the AAT postpone the making of its decision.
47 I respectfully disagree with the primary judge's finding at [34(ii)] that it was unreasonable for the AAT to require Mr Haq to obtain evidence from the Red Steer as to its intentions and that it was "therefore perfectly reasonable that the Applicant may have no document from the Red Steer about his prospects". It was a matter for Mr Haq to decide what evidence he should obtain to support his adjournment application, including the desirability of providing written material which corroborated his own personal evidence. As noted above, the AAT had informed the respondents, through their migration agent, by its letters dated 22 July 2015 and 10 August 2016 that additional evidentiary material could be provided in support of the review application. The AAT was not obliged to accept and act upon Mr Haq's oral evidence, particularly having regard to all of its uncertainties and vagaries. It was open to the AAT to rely on the respondents' omission to provide any supporting documenting material.
48 I also respectfully disagree with the primary judge's reasoning at [34(iv)] that the respondents' failure to provide the AAT with further material in response to the invitations in the letters dated 22 July 2015 and 10 August 2016 did not provide an intelligible justification for not granting a four week adjournment "given that at those times the Applicant had not had the discussions with Red Steer". This overlooks the fact that the AAT's invitations for the respondents to provide further material were still on foot at the time when Mr Haq said he had had discussions with the owner of the Red Steer. As noted above, the first letter was effectively open-ended and the second letter set a deadline of 23 September 2016, which was after the discussion which Mr Haq claimed in his oral evidence on 30 September 2016 had occurred "a few weeks ago".
49 Among the matters identified by the primary judge as supporting her finding that the AAT's decision lacked an intelligible justification was her concern that the AAT member may have prejudged her decision because of her refusal the previous day to extend time for the respondents to submit further documents. Although later in her reasons for judgment, her Honour made clear at [41] that she did not make a finding of apprehended bias because it had not been raised by the parties, she did take this concern into account in her assessment of whether or not there was an intelligible justification (see [34((vi)]). Her Honour also noted at the end of [41] that "the observations of the Court's concern should still be noted".
50 Merely because the AAT member had previously refused an earlier adjournment request did not necessarily mean that she had prejudged the oral request made on 30 September 2016. It is not unusual for a person conducting a hearing, whether in a tribunal or in a court, to be required to determine multiple requests for an adjournment but that does not necessarily involve prejudgment. The primary judge seemed to consider that there was a problem of prejudgment merely because an earlier request had been refused. That fact alone cannot be determinative, particularly in a case such as this where the AAT has given detailed and rational reasons why the second request was rejected.
51 As to the primary judge's finding at [34(vii)] that it was insufficient to deny Mr Haq's request because the requested four week postponement could not "guarantee sufficient documentation being provided by the Applicant to enable him to meet the criteria", there are two things to say. First, the AAT did not use the word "guarantee". Secondly, and more significantly, in declining to grant the requested four week postponement, the AAT was entitled to adopt the course that it did and for the reasons it gave, particularly with reference to the uncertainties and vagueness in Mr Haq's own evidence concerning his contact with the Red Steer owner, as identified in the extracts from [12] and [14] of the AAT's reasons for decision (which are set out at [18] and are summarised at [45] above), as well as the other matters which are mentioned in [17] above. The probability of Mr Haq being able to produce the necessary documentation within the requested four week period was a relevant matter to be assessed by the AAT. It was clearly open to the AAT to come to the view which it did on this matter having regard to Mr Haq's oral evidence and the absence of any corroborating material.
52 In my respectful view, the AAT's reasons for decision disclose an evident and intelligible justification for its decision. Moreover, the decision was within the AAT's "area of decisional freedom" or "zone of discretion". I do not believe that there are exceptional circumstances in this case which justify judicial intervention on the basis that the outcome of the exercise of the power is legally unreasonable. The primary judge erred in concluding that the AAT's reasons did not provide an intelligible justification for its decision.
53 Since drafting these reasons for judgment, I have had the opportunity to review the draft reasons for judgment of Colvin J. It is appropriate to make the following observations. First, I respectfully disagree with his Honour's findings that the AAT did not identify the likely consequences if the adjournment (or deferment of the decision on the review application) was refused, or weigh those matters in the balancing exercise. Mr Haq himself had made clear in his letter dated 29 September 2016 that his review application was unlikely to succeed if he did not have an approved sponsor/nominator. Moreover, at the outset of the AAT's statement of decision and reasons, it made explicit reference to the fact that one of the criteria for a 457 visa which had to be satisfied at the time of decision was that there be a current and approved nomination of an occupation relating to the visa applicant by a standard business sponsor (see the AAT's reasons for decision at both [3] and [8]). Finally, the AAT expressly referred to the relevance of the "significance of the information and documents" to Mr Haq at the end of [13] of its reasons for decision.
54 Secondly, I respectfully disagree with his Honour that the AAT's reasons failed to provide an intelligible justification for its decision because there was "no consideration of the significance of the fact that the Haq family were advancing the request for an additional four weeks on their own behalf without the assistance of a migration agent and without any suggestion that they had been told that they would need some form of independent verification in order to be able to make the request". As noted above, the migration agent gave notice only shortly before the hearing that it planned to withdraw its representation of the Haq family. In any event, the AAT's letters dated 22 July 2015 and 10 August 2016 specifically invited the respondents to provide material or written arguments and information which they wished the AAT to consider. It was made clear in the covering letters which were addressed to the respondents' migration agents that, by providing the agent with the notifications, it was deemed that they had been given to the review applicants themselves (which accurately reflected the effect of s 379G(2) of the Act).
55 Thirdly, I respectfully disagree with his Honour's finding that the AAT "did not act on the basis that there was little or no prospect of the nomination being obtained such that there would be no purpose in acceding to the request for a four week deferment". The AAT expressly stated at [13] of its reasons for decision that one of the matters it considered was whether an approved nomination by an approved sponsor "is likely to be forthcoming". The AAT then explained in [14] why it was unable to make a finding in Mr Haq's favour on this issue, with reference to all the uncertainties which it identified in [14] of its reasons for decision.
56 Finally, there was no lack of logic in the AAT relying on the fact that the Haq family had been on notice since 22 July 2015 that they should provide to the AAT all the material on which they intended to rely, in circumstances where the issue of a different employer had only arisen in the past few months leading up to the AAT's hearing on 30 September 2016. I repeat what is said in [48] above.