Minister for Immigration and Citizenship v Li

Findings of the Tribunal 61 The Tribunal proceeded to determine the application without waiting for a revised assessment by TRA. The Tribunal found as follows (0900645 [2010] MRTA 151): FINDINGS AND REASONS 29. At the time the visa application was lodged, the Skilled Independent Overseas Student (Residence) (Class DD) visa contained only subclass 880 (Skilled - Independent Overseas Student). 30. The criterion in dispute is clause 880.230 which is relevant to the time of decision and relevantly provides that no evidence has become available that the information given or used as part of the relevant assessing authority's assessment of the applicant's skills is false or misleading in a material particular. 31. In this case, the applicant identified her nominated skilled occupation as 'cook'. According to IMMI 06/063 in force from 6 December 2006, the relevant assessing authority for cooks is Trades Recognition Australia (TRA). According to a letter from TRA dated 8 January 2007 lodged by the applicant with the application, TRA had accepted that on the basis of the applicant's training and/or work experience, her skills were accepted for the occupation of 'cook'. Accordingly, the Tribunal finds that the Relevant Assessing Authority has assessed the applicant's skills as suitable for her nominated skilled occupation of cook on 8 January 2007. 32. The Department stated that the applicant submitted to TRA her Australian qualifications as a cook from SICB, a certificate III in Hospitality - Commercial Cookery dated 4th July 2006 and an employment reference from Market City Bar claiming that she worked there as a cook from 16th May 2005 to 18th December 2006. the Department has also stated that the TRA Record of Assessment stated that there was telephone verification with a file note stating that skills assessor Robert Tracey called the referee, Ricky Choi, who confirmed the 900 hours and that the applicant 'can and does perform the duties of a cook'. The applicant's employment experience at Market City Bar was put to her at hearing and she stated that she understood that her former agent had put this material to TRA and that the decision by TRA to positively assess her skills as a cook was wrongly tainted. The applicant's agent has stated that there is no question about that and the reference is not true. The Tribunal finds that based on this, TRA's assessment of the applicant's skills as suitable for her nominated skilled occupation as cook has relied upon the applicant's experience at Market City Bar which is not true. The Tribunal must still ascertain whether the applicant's experience at Market City Bar is false or misleading in a material particular. The Tribunal notes that the Department stated that the TRA Record of Assessment stated that there was telephone verification with the referee, Ricky Choi, who confirmed the 900 hours and that the applicant can and does perform the duties of a cook. Given this, and given that the TRA assessment referred to the applicant's training and/or work experience, the Tribunal finds that the applicant's false work experience at Market City Bar was used towards the applicant's positive skills assessment and was not only relevant to TRA's assessment dated 8 January 2007, but was also not trivial or inconsequential to that assessment. As a result, the Tribunal finds that evidence has become available that the information given or used as part of the assessment of the applicant's skills was false or misleading in a material particular. 33. The Tribunal has found that the only TRA assessment currently before it is dated 8 January 2007 and that the applicant's false work experience was used towards her positive skills assessment and was false or misleading in a material particular. The applicant has maintained that she did not deliberately seek to mislead TRA and that the reference letter was included in the skills assessment application to TRA by her former migration agent, Mr David Yao, without her consent or knowledge. The Tribunal has difficulty accepting this given that it is not disputed that the applicant lied about her experience when first confronted with it by DIAC. Even if the Tribunal does give the applicant the benefit of the doubt and accepts she did not know that the reference was included in the TRA skills assessment and she lied to DIAC because she was nervous and intimidated and did not want to lose her chance to remain in Australia, the Tribunal does not consider that clause 880.230 requires the applicant's knowledge that the information given or used as part of the assessment of her skills is false or misleading in a material particular. 34. The applicant's adviser has submitted that the fraud affected TRA assessment can be replaced by a new TRA assessment which will thereby mean that the applicant can still meet clause 880.230. He has also requested time to obtain a fresh assessment. The applicant's adviser has also suggested that clause 880.230 should not be read in conjunction with 880.211. He has also referred to clause 880.224. 35. Although there is no legislative restriction upon acquiring a second skills assessment, there is no current skills assessment before the Tribunal assessing the applicant as suitable other than that of the 8 January 2007 assessment. The Tribunal has had regard to the TRA assessment of 15 December 2009 and the adviser's submission that it has been affected by errors and is the subject of review. The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority's assessment. 36. Given the findings made above, the Tribunal finds that it is unnecessary to consider clause 880.224. 37. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

Review of the TRA assessment 62 It is common ground that, following the Tribunal's decision, Ms Li was successful in respect of the TRA's review of its second assessment of her skills, and that the resultant TRA assessment was favourable to her. His Honour noted this fact but observed in the primary judgment that he had not taken the revised assessment into consideration in determining Ms Li's application in that Court.

Decision of Federal Magistrate 63 Before the Federal Magistrate Ms Li pressed two grounds of review of the decision of the Tribunal, namely that: 1. the Tribunal failed to afford her procedural fairness by not deferring its decision while Ms Li was awaiting the outcome of her review application to the assessing authority; and 2. the Tribunal misconstrued the meaning of Schedule 2 criterion 880.230 to cover "each and every relevant assessing authority's assessment" and therefore misapplied the law, which caused the Tribunal to fail to exercise its role correctly. 64 His Honour also requested the parties to address him on the question whether the Tribunal's failure was, in the circumstances, unreasonable in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. At [27] his Honour explained that the issue posited by him for debate was: Why the decision by the Tribunal to refuse the applicant further time to permit finalisation of the skills assessment dated 15 December 2009 was not unreasonable in the Wednesbury Corporation sense. 65 In relation to the first ground of review his Honour found that the decision of the Tribunal to proceed to determination, in circumstances where Mr Syme had explained the circumstances pertaining to information supplied by her first migration agent, was: unreasonable in the Wednesbury sense; and constituted an improper exercise of power (at [48], [51]). 66 The reasons for his Honour's conclusion were, in summary: while the Minister submitted that Ms Li had frequently delayed in undertaking steps required in respect of her application, nonetheless it was also apparent that time for compliance had not previously been an issue (at [48]); a consideration of the respective merits of the competing interests of the parties was absent from the Tribunal's decision. In particular, his Honour noted at [49]-[50]: On a plain reading of the applicant's agent's letter there appeared good reason to be cautious of the assessing authority's original decision. The applicant'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 the applicant. That matter was the only item outstanding in what otherwise ought to have been a successful application…. (T)here was nothing in the Tribunal's decision to suggest any evaluation had been effected of the applicant's agent's contentions on this point. The decision to refuse an adjournment did not appear to be informed by an assessment of the weight of this factor. That was especially important in circumstances where the potential outcome for the applicant was catastrophic when measured against the interests of the Commonwealth. In the circumstances a delay in delivery of its decision would not have occasioned any harm to the Commonwealth. Nor could it be contended its referral was the only way justice could have been effected for the Commonwealth. (Footnotes omitted.) The failure of the Tribunal to evaluate the contentions of the applicant's agent infected the Tribunal's decision. This failure constituted conduct which was unreasonable in the Wednesbury sense. It followed that the decision was infected by jurisdictional error warranting remittal of the application to the Tribunal for rehearing. 67 His Honour found that the second ground of review had not been substantiated. His Honour's finding in relation to construction of criterion 880.230 is not in issue in this appeal.

Grounds of appeal 68 The grounds of appeal of the Minister against the decision of his Honour were as follows: 1. The learned Federal Magistrate erred in holding that the refusal by the Migration Review Tribunal's ("MRT") to delay making a decision as requested by the First Respondent was affected by Wednesbury unreasonableness, on the bases that: a. His Honour reversed the correct onus of proof, requiring the first respondent to establish why the decision of the MRT to refuse further time or to refuse the adjournment was not unreasonable in the Wednesbury sense, rather than it being for the applicant to establish why the decision of the Tribunal to refuse the applicant further time or to refuse the adjournment was unreasonable in that sense; b. His Honour erred in proceeding on the basis that a desire for delay on the part of the First Respondent, in order that through changed circumstances she might come to satisfy a relevant criterion, was a ground upon which the MRT could or should delay making its decision; c. His Honour erred in treating the absence of overt consideration by the MRT of particular issue or considerations, rather than the reasonableness of the exercise of the discretion in itself, as an element of the test of Wednesbury unreasonableness; d. His Honour erred in having regard to his own assessment of the merits of the First Respondent's basis for requesting an adjournment; e. His Honour erred in having regard to his own assessment of the merits of the First Respondent's review application; f. His Honour erred in finding that the MRT's refusal was a decision that no reasonable tribunal could have made. 2. The learned Federal Magistrate erred in holding that a failure to adjourn may result in a breach of section 357A (3) of the Migration Act 1958 (Cth) ("the Act") being a denial (or analogous to a denial) of procedural fairness. 3. The learned Federal Magistrate erred in holding that a refusal to exercise a procedural discretion (namely the discretion to adjourn the review or otherwise delay making a decision), not amounting to a denial of procedural fairness or a breach of any statutory requirement, was capable of constituting a jurisdictional error vitiating the Tribunal's decision on the review. 69 Before turning to the appellant's grounds of appeal, it is appropriate to outline a number of principles which, in my view, are relevant to issues agitated in this proceeding.

Procedural fairness and natural justice under the Act 70 Hearings before the Tribunal are subject to s 357A of the Act. The section provides as follows: Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. 71 "This Division" to which s 357A refers is Pt 5 Div 5 of the Act. Part 5 deals with the conduct of review of decisions of the Minister. Division 5 contains the following sections: 357A. Exhaustive statement of natural justice hearing rule 358. Documents to be given to the Tribunal 359. Tribunal may seek information 359AA. Information and invitation given orally by Tribunal while applicant appearing 359A. Information and invitation given in writing by Tribunal 359B. Requirements for written invitation etc. 359C. Failure to give information, comments or response in response to written invitation 360. Tribunal must invite applicant to appear 360A. Notice of invitation to appear 361. Applicant may request Tribunal to call witness and obtain written material 362. Applicant may request Tribunal to call witnesses 362A. Applicant entitled to have access to written material before Tribunal 362B. Failure of applicant to appear before Tribunal 363. Powers of the Tribunal etc. 363A. Tribunal does not have power to permit a person to do something he or she is not entitled to do 364. Presiding member may authorise another person to take evidence 365. Review to be in public 366. Oral evidence by telephone etc. 366A. Applicant may be assisted by another person while appearing before Tribunal 366B. Other persons not to be assisted or represented while appearing before Tribunal 366C. Interpreters 366D. Examination and cross-examination not permitted 367. Certain decisions to be made within prescribed period 72 Sections 358-367 provide, in great detail, procedural rules applicable to hearings before the Tribunal. Relevantly to these proceedings, s 363(1)(b) empowers the Tribunal, for the purpose of a review of a decision, to adjourn the review from time to time, although the section imposes no specific obligation on the Tribunal in relation to the exercise of the power. I note that the Full Court in Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152 merely observed that it is open to the Tribunal to adjourn a hearing from time to time. 73 In Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 this Court considered in depth the rationale for the enactment of s 357A as well as comparable s 51A and s 422B of the Act. The Court recognised that s 357A, which became operative on 4 July 2002, was legislated in response to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. In summary, s 357A limits the application of rules of procedural fairness for the purposes of proceedings under the Act, and confirms that common law natural justice requirements are excluded from the operation of the Act: Saeed at [25]-[46], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, Khan v Minister for Immigration and Citizenship [2011] FCAFC 21. 74 Notwithstanding, it is clear that other - non-procedural - rules of natural justice are not excluded from the operation of the Act. The example usually cited is bias: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [27], SZCIJ at [65], Saeed at [30]. 75 It follows that the question whether a failure of the Tribunal to adequately consider adjournment can properly found an application for judicial review must be considered in light of the provisions of Pt 5 Div 5, and in particular s 357A. In answering this question the following issues arise from the decision of his Honour: Can a failure to adjourn be contrary to s 357A(3) of the Act as suggested by his Honour at [45]? If not, can a failure to adjourn otherwise found an application for review of a decision of the Tribunal?

Can a failure to adjourn be contrary to section 357A(3) of the Act? 76 In considering s 357A in the circumstances before the Court, it is useful to note that, notwithstanding the limitations in respect of the application of the common law rules of natural justice enacted in that section, s 357A(3) states that the Tribunal, in applying Pt 5 Div 5, must act in a way that is fair and just. 77 In Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1308 Finn J observed in relation to s 357A: [27] The construction of this provision is not free from difficulty: see generally NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456. That difficulty arises because the Division's "exhaustive statement of the requirements of the natural justice hearing rule" is only "in relation to matters [the Division] deals with". As French J indicated of the counterpart provision (s 422B) in Division 4 of Part 7 of the Act in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590; (2004) 204 ALR 624 at [57]: This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The 'matters' Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, i.e. the conduct of reviews by the Tribunal. 78 So, for example, an immediate question is whether, in considering whether to adjourn a proceeding pursuant to s 363(1)(b), the exercise of the Tribunal's powers is qualified by s 357A so that any decision of the Tribunal must be "fair and just". 79 The Minister submitted that s 357A(3) does not create "free standing obligations" capable of creating rights which can be enforced. 80 There is merit to this submission. Section 357A(3) is identical in its terms to s 422B(3), which requires the Refugee Review Tribunal to act in a way that is fair and just. A similarly drafted provision exists in s 353(1) (and, in relation to the operations of the Refugee Review Tribunal, s 420(1)), which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick in carrying out its functions under this Act. 81 Section 422B(3) was considered by this Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83. In that case the appellant had applied for a protection visa under the Act. The Tribunal dismissed the application. The appellant complained that the Tribunal had failed to warn him that it would reject a number of documents produced to the Tribunal, because the Tribunal considered that those documents had been fabricated by the appellant for the purposes of enhancing his application for a protection visa. He claimed relief, at first instance in the Federal Magistrates Court, on the basis that the Tribunal had failed to comply with s 422B(3) of the Act. 82 In their joint judgment the Full Court explained: [15]…Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 (see Eshetu's Case at [158]). [16] Section 424A does not require the Tribunal to put its thought processes or preliminary conclusions to an Applicant (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]). Further, s 422B(3) should not be construed as imposing such an obligation or requiring s 424A to be interpreted as imposing such an obligation. Section 422B(3) speaks of how the Tribunal must act in applying Division 4. It is not a free standing obligation, but simply draws content from the other provisions of Division 4. [17] Thus, s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) that Division 4 contained an exhaustive statement of the application to the conduct of a review by the Tribunal of the natural justice hearing rule in relation to the matters dealt with in Division 4. In that sense, s 422B(3) complements s 420(1). The unequivocal statement in s 422B(1) of the exhaustive nature of Division 4 renders it unarguable that some other requirement of fairness are to be implied. [18] However, while the effect of s 422B(1) was to make Division 4 an exhaustive statement of the rule, there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly. Accordingly, it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4. Section 422B(3) might therefore be understood as restoring fairness and justice as a procedural concept. In those circumstances, the requirement that the Tribunal act in a way that is fair and just does not refer to substantive notions of justice or fairness but is more usefully to be compared with the content of the words "justice" and "fairness" in the expressions "natural justice" and "procedural fairness", respectively (see SZLLY v Minister for Immigration & Citizenship [2009] FCA 185; (2009) 107 ALD 352 at [22] to [24]). (Emphasis added.) 83 In considering the decision of the Tribunal to proceed to determination, his Honour below at [44] noted the obligation of the Tribunal under s 353, and "accepted" that circumstances in which a failure to adjourn "may result in a breach of s 357A(3) are of a kind analogous to a denial of procedural fairness". I agree with the submission of the Minister that the import of this statement is not clear. In fact, it is not clear that his Honour actually based his decision that the Tribunal had erred in a manner going to its jurisdiction on a supposed breach of s 357A(3). Had his Honour done so, in my view his Honour would have been in error for the reasons given by the Full Court in SZMOK in relation to s 422B(3). A failure to adjourn cannot constitute a breach of procedural fairness as being contrary to s 357A(3), because s 357A(3) is an exhortative provision which does not create a procedural requirement over and beyond the express provisions of Pt 5 Div 5 of the Act.

Can a failure to adjourn otherwise found an application for review of a decision of the Tribunal? 84 Before this Court the Minister submitted, in summary, that: refusal of an adjournment may, in some circumstances, lead to a breach of general law principles of procedural fairness, as identified in NAHF v Minister for Immigration (2003) 128 FCR 359 at 365; absent a requirement arising from s 357A(3), no connection is apparent between his Honour's finding that the Tribunal's procedural discretion was exercised unreasonably and the ultimate conclusion of jurisdictional error; the Tribunal's obligations of procedural fairness are expressly limited to compliance with the specific provisions of Pt 5 Div 5 of the Act, none of which imposes any obligations in relation to the grant of adjournments. 85 In my view the assumption buttressing these submissions, namely that a decision to refuse an adjournment does not fall within the contemplation of Pt 5 Div 5 of the Act and therefore cannot found an application for review of the Tribunal's decision, is false. This is because, in fact, there are requirements imposed on the Tribunal by s 360 and s 363(1)(b) of the Act, and resultant duties of the Tribunal to not only present the applicant before it with a reasonable opportunity to be heard, but to properly consider any application for an adjournment. 86 Section 360 of the Act provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 87 The obligation of the Tribunal to invite the applicant to appear before it, to give evidence and present arguments relating to issues arising in relation to the decision under review, contemplates the proper consideration by the Tribunal of matters before it, including an application for an adjournment of proceedings. This is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and the decision of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126.

Bhardwaj 88 While the decision of the High Court in Bhardwaj predates the operation of s 357A of the Act, the principles discussed by their Honours are directly relevant to the interpretation of s 360 in its current form. 89 In Bhardwaj the High Court considered the construction of s 360(1) of the Act, which at the material time provided that the Tribunal: (a) must give the applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and (b) may obtain such other evidence as it considers necessary. 90 The amendments to s 360(1) introduced since its consideration by the High Court in Bhardwaj appear to reflect the desire of Parliament to allow greater flexibility in respect of the actual appearance of the visa applicant before the Tribunal, including allowing the Tribunal to make decisions favourable to the visa applicant without the necessity of the visa applicant appearing at a hearing. The revision to s 360(1) has not otherwise affected the obligation of the Tribunal in respect of hearing an application by the visa applicant, and has certainly not reduced the applicant's right to appear before the Tribunal to a merely formal right to be invited (Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44], NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]). 91 In Bhardwaj the respondent was a student whose visa was cancelled by a delegate of the Minister, and who applied to the Tribunal for a review of the decision. The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing. Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September. The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate. When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September. A new hearing date was arranged. The Tribunal heard the respondent's explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and, on 22 October 1998, revoked the cancellation. The Minister appealed the decision on the ground that the Tribunal had previously made a decision in respect of the same application and was functus officio. 92 The appeal was dismissed unanimously. The Court found that, on the facts, the decision made by the Tribunal in ignorance of the application for adjournment had not been a proper decision, and should be set aside. 93 Gleeson CJ observed: [14] In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power." The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. [15] In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act. (Footnotes omitted and emphasis added.) 94 Gummow and Gaudron JJ (McHugh agreeing) observed: [40] Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. [41] It was not disputed by the Minister that the September decision was made in circumstances in which Mr Bhardwaj was denied a reasonable opportunity to answer the case against him. It, thus, involved a breach of the rules of natural justice and may be set aside by this Court pursuant to s 75(v) of the Constitution. Further, as was contended on behalf of Mr Bhardwaj, the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act. [42] The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj's visa. [43] The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a "decision on review" for the purposes of ss 367 and 368 of the Act. [44] To say that the September decision was not a "decision on review" for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under s 75(v) of the Constitution. This notwithstanding, the question whether the Tribunal could disregard its September decision depends on the scheme of Pts 5 and 8 of the Act. To understand that scheme, it is necessary to say something as to the nature of an administrative decision. (Footnotes omitted and emphasis added.) 95 Kirby J said: [88] In its earlier decision in Capitly, the Federal Court had recorded a submission for the appellant that the Tribunal had sufficiently discharged its obligations in law by advising of the proposed hearing date and the right to give evidence. That submission was based upon the notion that the Act was concerned only with the obligations of the Tribunal and not with anything that might happen thereafter to an applicant. However, the Federal Court gave a broad meaning to the phrase "opportunity to appear". It rejected the submission that its approach would "open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing". [89] The construction of the Full Court was open on the statutory language. It was one apt to promote the attainment of the relevant legislative purpose. It was also broadly consonant with the importance attached by the common law to the right to be heard before important decisions having adverse consequences are made. A relevant consideration is the statutory restriction on the right of an applicant to be represented before the Tribunal by another person. (Footnotes omitted.) 96 Hayne J said: [147] The inquiry about the legal consequences to be attributed to what was done in September 1998 must begin and end with the Act. The relevant provisions are set out in the reasons of Kirby J and I do not repeat them. It was assumed, at first instance, and on appeal to the Full Court of the Federal Court, and it was not seriously challenged in this Court, that the provisions of s 360(1)(a) of the Act (in their then form) had obliged the Tribunal to give the respondent "a continuing opportunity" to give evidence to the Tribunal, and that that opportunity must take account of circumstances as they existed from time to time until the opportunity to give evidence was either taken or not. It was not seriously disputed in the courts below, or in this Court, that, due to an oversight, the Tribunal had not given the respondent the opportunity which s 360(1)(a) required he be given before the Tribunal made the September decision. Accordingly, the argument of the appeal in this Court proceeded from an assumption from which it followed that, if application had been made either to the Federal Court for an order of review on the ground that the Tribunal had not observed the procedures required by the Act, or to this Court for a writ of prohibition, the respondent would have been entitled to have the September decision set aside, or further proceedings on it prohibited. While it may be right to say that no application could be made to the Federal Court for review on the ground that there had been a denial of natural justice, what is important, for present purposes, is that the respondent could have obtained from a court (here, either the Federal Court or this Court) an order setting aside, or quashing, the September decision. And, this Court could have granted relief on the ground of denial of natural justice. … [149] The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. (Footnotes omitted and emphasis added.) 97 Finally, Callinan J observed: [162] I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. [163] The application for an adjournment was an important document. The Tribunal was bound to give it consideration. This was not a case in which a document or a piece of evidence was merely not referred to in a decision. This is a case in which it is known that the application for an adjournment was not brought to the attention of the Tribunal in order to enable it to exercise its jurisdiction to grant or refuse the adjournment, and if it refused it, to undertake the review in the knowledge, and on the understanding that it had been refused. If the Tribunal had, at the time of making its September 1998 decision, known of the application for an adjournment, it might, if it were so minded, have decided to refuse it. It might perhaps in refusing it, have been unnecessary to give any, or any detailed reasons why it did so. But what it did have to do was to exercise its jurisdiction, that is, relevantly, to make a decision about it and the Court does know that that is one thing which it did not do. [164] It follows, in my opinion, that the Tribunal had not exercised its jurisdiction in September 1998 and that therefore it was open for it to do so in October 1998. (Footnotes omitted and emphasis added.)

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR 98 In SCAR the Full Court considered an appeal from a decision of a single judge of this Court quashing a determination of the Refugee Review Tribunal for absence of procedural fairness. The alleged unfairness arose on account of the respondent's extreme distress and the effect upon him of medication at the time of the hearing, where the hearing occurred shortly after his father's death. This fact was unknown to the Tribunal at the relevant time. 99 The Court considered s 425, which is in identical terms to s 360 but which is relevant to deliberations of the Refugee Review Tribunal. 100 In examining s 425 the Court in joint judgment observed: [35] Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal. … [37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. [38] It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a 'jurisdictional error'. [39] The legal position is analogous to that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117. In that case the applicant had sent a facsimile to the Tribunal advising that he could not attend the hearing on account of illness and seeking another date. The Tribunal member was not informed of the facsimile and proceeded with the hearing in the absence of the applicant. The question in that case was whether a hearing conducted by the Tribunal in the absence of the applicant was invalid for jurisdictional error. The High Court held that it was. As it was put by Hayne J at [149]: The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. Admittedly that decision was made in the context of the then relevant statutory provision which required that the Tribunal give the applicant an opportunity to appear before it and to give evidence and to present arguments, whereas s 425 of the Act is limited to giving notice in relation to those matters. However, for the reasons given above that difference is not critical in the current case, whatever might be the situation in other cases.

Bhardwaj and SCAR: section 360 101 In my view Bhardwaj and SCAR are directly relevant to the proceedings before me, and more particularly to the interpretation of s 360. 102 As a matter of law, I consider that a failure by the Tribunal to give proper consideration to an application for adjournment by a visa applicant amounts to a failure of the Tribunal to give the applicant a reasonable opportunity to present evidence and argument within the meaning of s 360. The strictures imposed by s 357A(1) are not contravened - in such circumstances an order by the Court to quash the decision of the Tribunal accords with s 357A(1) of the Act. However there is clearly a breach of the obligations imposed on the Tribunal by s 360. 103 I am fortified in this conclusion by comments of Finn J in Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1308 at [31] (in relation to adjournment, and s 360), and those of the Full Court in NALQ at [34]-[39], Flick J in NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [21]-[22], Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [39] and Gyles J in Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 at [5] (in relation to adjournment, and s 425). 104 I am also satisfied that a failure by the Tribunal to properly consider an application for adjournment is an error going to the jurisdiction of the Tribunal, and susceptible of review by this Court. By analogy I note the decision of Besanko J in Minister for Immigration and Citizenship v Hassani [2007] FCA 436 that an error of the Administrative Appeals Tribunal in its consideration of its general power to adjourn was a error going to the jurisdiction of that Tribunal. More precisely, a failure of the Tribunal to properly consider an application for adjournment, being a failure of the Tribunal to accord with s 360 of the Act, is in turn a failure of the Tribunal to comply with a condition of the exercise of decision-making power and jurisdictional error as discussed by the High Court in Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476.

Finding 105 Turning now to the decision of the Tribunal, it is not in dispute that the Tribunal proceeded to its decision without awaiting the outcome of the review by TRA of its skills assessment of Ms Li. The request by Mr Syme on Ms Li's behalf for an adjournment of the proceedings pending the TRA decision was clearly refused. 106 In this Court, Counsel for the Minister submitted that there was no suggestion that the Tribunal's refusal to delay its decision deprived Ms Li of a fair hearing in any respect, on the basis that: her claims, on the facts as they stood, had been fully and cogently articulated and considered; and Ms Li had been deprived only of the improved prospects of success which might arise from a change in those facts. 107 However in my view it is clear that, in the circumstances of this case, the Tribunal failed to properly consider Ms Li's application for adjournment, and that this failure constituted a failure of the Tribunal to give Ms Li a proper hearing within the meaning of s 360 of the Act. This is because: The grounds for the adjournment provided by Ms Li, through her migration agent Mr Syme, were clearly provided to the Tribunal. Significantly, those grounds, which related to claimed errors in the TRA assessment, were supported by an acceptance by TRA itself that it had erred in respect of its first assessment of Ms Li's skills. From information provided by TRA it appeared likely at the time of the adjournment application that TRA would revise its previous decision in respect of Ms Li, in her favour. The outcome of the TRA assessment of Ms Li's skills was an important issue for consideration by the Tribunal in its consideration of Ms Li's visa application. No detriment in respect of adjournment was claimed by the Minister, in stark contrast with the possible impact on Ms Li should the Tribunal proceed to decision without informed consideration of all issues relevant to her application. This impact was properly described by the Federal Magistrate as "catastrophic" (at [50]). The reason for the Tribunal's rejection of Ms Li's application for an adjournment can be found in paragraph 35 of the Tribunal's Statement of Decision and Reasons: The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority's assessment. However in so finding, it is clear that the Tribunal did not consider the grounds upon which Ms Li sought the adjournment, including the likelihood that in the circumstances of the case TRA would imminently revise its assessment. Further, the statement of the Tribunal is curious in light of the fact that the situation before the Tribunal did not appear to be one where the visa applicant had been granted indulgence after indulgence, which could have supported a decision refusing an adjournment. 108 In light of these findings, it follows that the decision of his Honour below ought be affirmed, and the appeal dismissed.

Wednesbury Unreasonableness 109 In conclusion, I note that his Honour below clearly linked issues relevant to adjournment with principles explained in the well-known case of Wednesbury Corporation. In my view this approach was misconceived in the circumstances of this case. The issues before his Honour, as appear from the case presented by Ms Li, were: whether a failure to properly consider adjournment went to the jurisdiction of the Tribunal so as to found an application for judicial review; and whether the Tribunal had properly considered the request for adjournment. 110 While his Honour unilaterally raised with the parties the issue of unreasonableness "in the Wednesbury Corporation sense", it is clear from the judgment below that his Honour's discussion of "unreasonableness" could more properly be described as a consideration of whether the approach of the Tribunal to the application for adjournment was unfair to Ms Li because of a failure of the Tribunal to properly consider that application. In so observing I note the following points. 111 First, the case presented by Ms Li to his Honour in respect of the first ground of the application was clearly framed in terms of procedural fairness ([32]). Indeed his Honour's decision was clearly couched in terms of principles of procedural fairness, and further whether the failure to adjourn had resulted in a breach of s 357A(3) (for example, at [45]). 112 Second, his Honour accepted the principle that a refusal to adjourn a hearing may, in some circumstances, involve a denial of procedural fairness ([34]). 113 Third, his Honour observed that a decision to adjourn or not was at the discretion of the Tribunal ([41], [42]). 114 Fourth, and by reference to the High Court decision in Sali v SPC Ltd (1993) 116 ALR 625, his Honour accepted the principle that the only case in which an appellate court would interfere would be one in which it was satisfied that the decision to refuse an adjournment was such that "justice did not result" and that the "trial judge had failed to see that such could be the effect of his decision" ([35], [36]). 115 Fifth, and significantly, at [39] his Honour said: In essence the applicant complains that in refusing it an adjournment the Tribunal acted so unreasonably as to deny it procedural fairness. In making that submission the applicant particularly relies upon the fact that ultimately the prospect of a favourable outcome of the review of his (sic) second skills assessment ought to have been apparent to the respondent if it had acted reasonably and this would have had a significant effect upon the outcome of the application. (Emphasis added.) 116 This characterisation continued at [43] where his Honour noted: For the Minister it was contended there was nothing unreasonable in the Tribunal's decision not to wait or allow further time to the applicant to satisfy the criteria. (Emphasis added.) and further at [46] where his Honour noted that "(t)he applicant's complaint was that the Tribunal's conducted constituted 'unreasonableness' in the Wednesbury Corporation (supra) sense". 117 The introduction by his Honour of principles of "Wednesbury unreasonableness" into the analysis of the decision of the Tribunal was at odds with the actual complaint brought by Ms Li to the Court below, and an unnecessary distraction from the real issues in the case. Courts use the term "unreasonable" in respect of decisions to refuse adjournments without necessarily seeking to invoke Wednesbury Corporation. An instructive - and relevant - example is Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 where the Full Court observed: [93] SCAR was mentioned in support of a decision recently given by Gyles J in Applicant S296/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. In that case, however, the Tribunal had refused to adjourn a hearing on the grounds of the applicant's psychiatric condition. While finding no 'general fault in the reasoning of the Tribunal' Gyles J held that in the particular circumstances of the case there had been an unreasonable refusal of an opportunity to present a case which was sufficient to breach the rules of procedural fairness (at [5]). (Emphasis added.) 118 I note that in neither SZFDE nor Applicant S296/2003 were Wednesbury principles in contention.

Conclusion 119 In these proceedings it is clear that his Honour was of the view that the Tribunal had not properly informed itself of matters relevant to a decision to adjourn or not adjourn. This appears from his Honour's judgment at [45], [49] and [50]. As I have already found, it was the failure of the Tribunal to accord Ms Li a fair hearing within the meaning of s 360 of the Act which constituted an error going to the jurisdiction of the Tribunal. It was not necessary for his Honour, nor is it necessary for this Court, to consider the application of Wednesbury Corporation in this case. 120 I have formed the view that the decision of the Tribunal should be set aside, although for reasons different to those of his Honour. However as I consider that his Honour's decision was correct, the appeal should be dismissed with costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.