HAYNE, KIEFEL AND BELL JJ. On 10 February 2007, the first respondent, Ms Xiujuan Li, applied for a Skilled - Independent Overseas Student (Residence) (Class DD) visa. The relevant criterion for such a visa is that a "relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given … is false or misleading in a material particular". By the date of her application, Ms Li had obtained a skills assessment from a relevant assessing authority, Trades Recognition Australia ("TRA"). A delegate of the Minister refused Ms Li's application on the basis that some of the information she had provided was not genuine. Ms Li lodged an application for review of that decision with the Migration Review Tribunal ("the Tribunal") on 30 January 2009. It is the review conducted by the Tribunal which is in issue on this appeal.
TRA relied upon details of Ms Li's employment as a cook, which were provided to support the assessment of her relevant skills. She later admitted to the Minister's delegate that she had not in fact been employed at one restaurant which was specified in the information provided to TRA. However, she claimed that her former migration agent had provided that information without her knowledge. This was the background to the delegate's decision.
On 21 September 2009, the Tribunal sent a letter to Ms Li in which the false information was identified as a possible reason for affirming the delegate's decision. Her comment upon the false information was invited. In response, the migration agent now appointed by Ms Li confirmed the admissions Ms Li had made to the delegate but advised the Tribunal that since the date of her application, Ms Li had accumulated further work experience as a cook. The migration agent said that Ms Li was awaiting the decision of TRA with respect to her application for a fresh assessment of her skills, which, if successful, would enable the Tribunal to find that the skills assessment criterion was met.
The Tribunal convened a hearing on 18 December 2009. Much of the questioning of Ms Li by the Tribunal concerned the earlier misrepresentation of her work experience and the reasons why she had given evasive answers to officers of the Department of Immigration and Citizenship when asked about it. It also appears that the Tribunal discussed the possible provision of a second skills assessment by TRA, referable to Ms Li's later employment, with her migration agent, but it left the question of whether it would consider that assessment undecided. Ms Li's migration agent was invited by the Tribunal to address it further upon the matter.
Following the hearing, the Tribunal sent a further letter to Ms Li dated 21 December 2009 inviting her comments on the answers she had given to departmental officers, which were relevant to evidence she gave at the Tribunal hearing and to her admission that part of her employment history given to TRA was false. The false information was once again identified as a possible reason for affirming the delegate's decision. The Tribunal's letter advised that Ms Li's response should be received by no later than 18 January 2010, but the letter noted that if Ms Li requested an extension of time, the request would be carefully considered.
Ms Li's migration agent replied within the timeframe specified. In his letter, the migration agent advised the Tribunal that the second skills assessment by TRA had been received, but that it was not favourable. However, he contended that TRA had made two fundamental errors in the assessment: it had not taken into account Ms Li's experience at one place of employment; and it had failed to follow its own procedures in contacting referees to verify the employment details Ms Li had provided. The migration agent advised the Tribunal that Ms Li had applied to TRA for a review of its assessment and conveyed her confidence that it would be successful. (While this proved to be correct, it is not relevant to a consideration of the Tribunal's decision.) The migration agent went on to say:
"Because of the unforeseen error by TRA incorrectly assessing her skills assessment application … I am instructed to request (subject to the Tribunal accepting my below submissions regarding the ability to substitute a new skills assessment) that the Tribunal forbear from making any final decision regarding her review application until the outcome of her skills assessment application is finalised. I will keep the Tribunal informed as to the progress of that application."
At the conclusion of his letter, the migration agent submitted that the purpose of the criterion is to prevent the grant of a permanent residence visa on false grounds. He emphasised that Ms Li no longer relied upon the first skills assessment, which was affected by fraud. The second skills assessment, "when finalised", would satisfy the criterion. At an earlier point in his letter, the migration agent had identified the time at which the Tribunal would make its decision as the time when the Tribunal needed to consider whether Ms Li's skills assessment was based on information which was false in a material particular.
The Tribunal did not accede to the request that it delay the making of its decision and proceeded to do so on 25 January 2010. Although it accepted that there was no legislative restriction upon it receiving a second skills assessment, the Tribunal noted that none had been provided by that date. The Tribunal said that it "considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further". It found the first skills assessment to be affected by fraud and, therefore, Ms Li did not meet the criterion. The Tribunal concluded that it had "no alternative but to affirm the decision under review".
The decisions below
Ms Li was successful in her application for review of the Tribunal's decision by the Federal Magistrates Court (Burnett FM) and on the Minister's appeal to a Full Court of the Federal Court (Greenwood, Collier and Logan JJ). Burnett FM considered that the migration agent's letter displayed good reason why the skills assessment of TRA was wrong. It did not appear to Burnett FM that the Tribunal had evaluated the agent's contentions. The Tribunal could have inferred that Ms Li was not attempting to deliberately delay a decision in her case. The review of the TRA assessment was the only outstanding matter. Whilst the decision of the Tribunal was of great significance to Ms Li, delay would not adversely affect the Commonwealth. In these circumstances, his Honour held that the Tribunal's decision to proceed was unreasonable "in the Wednesbury Corporation sense" and constituted an improper exercise of its power which went to its jurisdiction.
The Full Court directed its attention to the provisions of the Migration Act 1958 (Cth) concerning the procedures for review by the Tribunal. Section 353 appears in Div 4 of Pt 5 of the Act and provides:
"Tribunal's way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case."
Division 5 of Pt 5 provides for steps which may be taken in connection with a review by the Tribunal. Section 357A appears in Div 5 and in relevant part provides:
"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.
…
(3) In applying this Division, the Tribunal must act in a way that is fair and just."
Particular provisions of Div 5, which were referred to in argument on this appeal, are ss 360(1) and 363(1)(b):
"360 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.
…
363 Powers of the Tribunal etc
(1) For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time".
Greenwood and Logan JJ considered that the Tribunal was obliged to meet the requirement of s 353 that its review mechanism be fair and to act in a way which is "fair and just" pursuant to s 357A(3). These prescriptions were, in their Honours' view, more than aspirational statements and were akin to the requirements of procedural fairness, which were not met in the present case. Their Honours also agreed with the approach of Burnett FM, finding that there was no countervailing consideration upon which it might be concluded that the refusal to adjourn was reasonably open to the Tribunal. The Tribunal's unreasonable exercise of the discretion given by s 363(1)(b) meant that it had not conducted the review as required by the Migration Act. Collier J rested her decision on s 360, holding that the Tribunal's failure to give proper consideration to the request for an adjournment amounted to a failure by the Tribunal to give Ms Li a reasonable opportunity to give evidence and present argument within the meaning of that section.
The issues on the appeal
The decision of the Tribunal, to affirm the decision of the delegate, was made under s 349(2)(a) of the Migration Act. The jurisdiction of the Federal Magistrates Court to review such a decision arises under s 476(1), which equates that jurisdiction with the jurisdiction given to this Court under s 75(v) of the Constitution. The remedies provided by s 75(v) are available only for jurisdictional error. It is not enough for jurisdictional error, the Minister submits, that some procedural discretion has miscarried.
The latter assertion understates the importance and extent of the questions surrounding the discretion under consideration. The question which arose for the Tribunal was whether its review ought to be adjourned in order to afford Ms Li the opportunity to put forward the second skills assessment once TRA's review of it was completed. The Tribunal is given the power and discretion to determine that question by s 363(1)(b). The Minister accepts that the discretion is not at large and that it must be exercised according to law. The law requires that its exercise be reasonable. How that legal standard may be tested will be discussed later in these reasons. For present purposes, it may be noted that the Minister contends that the Tribunal's decision to refuse the adjournment cannot be said to be unreasonable, but the standard of unreasonableness to which the Minister refers is limited to what is called "Wednesbury unreasonableness", which is to say "a decision … so unreasonable that no reasonable authority could ever have come to it".
A denial of procedural fairness may result in a decision made in excess of jurisdiction to which s 75(v) of the Constitution will respond. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. The Minister submits that, to the extent that procedural fairness might have called for the Tribunal's decision to be delayed in the circumstances of this case, s 357A(1) leaves no room for those principles to apply. Division 5 provides the content of procedural fairness which is to apply to the conduct of a review by the Tribunal.
The Minister further submits that ss 353 and 357A(3), properly understood, do not contain substantive requirements regarding the conduct of a review, breach of which amounts to an error going to jurisdiction. The reference in s 353 to a review mechanism that is "fair" and "just" is to general objectives, not to an enforceable duty. Fairness and justice, in the context of s 357A(3), is a procedural, rather than substantive, concept. Even if the particular exercise of a procedural power could be challenged by reference to s 357A(3), the Minister submits that there would remain the question whether it was intended that the ultimate decision on the review was to be vitiated. A failure to comply with a procedural requirement does not always result in invalidity.
It is convenient to deal first with the operation of ss 353 and 357A.
Sections 353 and 357A
The Minister submits that s 353 cannot be the source of any duty enforceable by the constitutional writs for which s 75(v) of the Constitution provides. Section 353 may commence with the imperative "shall", but what follows, according to the Minister's submission, are statements of goals rather than any identified action required to be undertaken. The adjectives "fair, just, economical, informal and quick" are apt to apply to objectives but not to enforceable requirements, not the least because each pulls the Tribunal in a different direction. It is contended that provisions of this kind do not detract from, but nor do they add to, such obligations, limits or powers as arise from the language of the statute.
The Minister's argument is supported by the reasoning in Minister for Immigration and Multicultural Affairs v Eshetu, which concerned an analogue provision to s 353: s 420 of the Migration Act as it then stood. At that time, s 476(2)(b) provided that an application to the Federal Court for review of a decision of the Refugee Review Tribunal could not be made on the ground that the decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised the power. Gleeson CJ and McHugh J described s 420 as an inadequate foundation for an attempt to overcome the provisions of s 476(2). Their Honours observed that provisions such as s 420 are intended to be facultative, not restrictive. Their purpose is to free tribunals, to an extent, from constraints which apply to courts. Their Honours, and Gummow J, agreed with what Lindgren J had said in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs respecting the relationship between ss 420 and 476. Lindgren J found it difficult to accept that the legislature intended to provide a ground of review where a mechanism of review in its application to a particular case, although "fair" and "just", was not "economical", "informal" and "quick". Gummow J endorsed Lindgren J's observation that the difficulty, if not the practical impossibility, of proving a failure to pursue a specific objective would suggest that s 420 could not have been intended to provide a ground of review.
It was also observed in Eshetu that s 420 must be understood in its statutory context. The same may be said of s 353. As mentioned, it appears in Pt 5, Div 4, which is entitled "Exercise of Tribunal's powers", and the section itself is headed "Tribunal's way of operating". Section 353 is followed by provisions dealing with the constitution of the Tribunal for the purpose of the exercise of its powers. But it is Div 5 which deals with how the Tribunal is to conduct a review.
Section 357A has a different statutory context. It appears at the commencement of Div 5, which is headed "Conduct of review". The language of s 357A is general. The sections which follow it detail certain entitlements which an applicant for review is to have and certain steps which are to be taken by the Tribunal leading up to and during a hearing. By way of example, an applicant for review is entitled to provide the Tribunal with written statements as to facts and written legal arguments. The Tribunal may seek additional information and in some cases may be bound to do so. Where it does so by giving a written invitation to a person to give additional information, or where it invites an applicant's comment on or response to certain information, particular requirements attach to the giving of the invitation. By s 360(1), the Tribunal is obliged to invite an applicant to appear before it "to give evidence and present arguments relating to the issues arising in relation to the decision under review". An applicant may request that the Tribunal call a witness or obtain written material and is generally entitled to have access to written material that is before the Tribunal. The Tribunal is given certain powers by s 363 for "the purpose of the review of a decision" including to require investigations or medical examinations to be conducted, to summon persons to appear before it and, of course, by s 363(1)(b), to adjourn the review from time to time.
The terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5. What then is to be understood by the requirement in s 357A(3), expressed in obligatory terms, that in "applying this Division, the Tribunal must act in a way that is fair and just"? If s 357A(1) is to be taken as exhaustive of the requirements of procedural fairness which attach to a review, does s 357A(3) nevertheless say that the Tribunal, in fulfilling those requirements and in exercising its powers, is to do so in a way which is fair and just?
In Minister for Immigration and Citizenship v SZMOK, a Full Court of the Federal Court considered an analogue to s 357A, which appeared in what was Div 4 of Pt 7 of the Migration Act. Applied to s 357A, the reasoning is that s 357A(3) cannot be taken as intended to qualify or cut down the express statement in s 357A(1). However, Div 5 provides no indication as to how the procedural powers contained in it are to be exercised. Section 357A(3) may be taken to address that omission. The Full Court considered that s 357A(3) may have been intended to restore concepts of fairness and justice to the exercise of the procedural powers for which the Division provides.
On this approach, it was said that "fairness" and "justice" may usefully be compared with the content of those words in the expressions "procedural fairness" and "natural justice". In drawing this conclusion, the Full Court in SZMOK was not equating the requirement of s 357A(3) to act in a way that is fair and just in the conduct of the review with the obligation to afford procedural fairness or natural justice. The Full Court said that some other requirement of fairness is to be implied, but clearly thought that that requirement bore the hallmarks of the obligation of procedural fairness at common law. The reconciliation effected by the Full Court suggests that it considered that a breach of the requirements of s 357A(3) may not have the same consequences as a breach of the common law obligation. The Full Court did not, however, consider the role of s 75(v) of the Constitution. It is firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction, for which prohibition will go under s 75(v).
In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.
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 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.
It is not necessary to determine what s 357A(3) requires and what may be the consequence of a breach of that provision. Even if s 357A(3) by itself has no consequence for the ultimate decision of the Tribunal, to affirm the delegate's decision, it might nevertheless be concluded that the purpose of s 360(1) was not met. Without Ms Li being provided an opportunity to present her further evidence, it might be concluded that the hearing contemplated did not take place. It is not necessary to determine the appeal on this basis, since there is a more direct route to its resolution, by reference to s 363(1)(b) and a requirement of the law.
An unreasonable exercise of discretion?
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.
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.
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 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case of 1598, 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".
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.
In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was "perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty … unreasonableness, attention given to extraneous circumstances, disregard of public policy" were all relevant to the question of whether a statutory discretion was exercised reasonably.
The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson, a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were:
"partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men".
In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where "no sensible authority acting with due appreciation of its responsibilities" would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.
The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation, reference was made to an analysis of three paradigm cases of unreasonableness which were thought to be consistent with a view of Lord Greene MR's "doctrine", as based on the law as to the misuse of fiduciary powers. The third paradigm involved the application of a proportionality analysis by reference to the scope of the power.
In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight - more than was reasonably necessary - to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis.
In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The Tribunal's exercise of discretion
The starting point is that the Tribunal, for the purposes of reviewing the delegate's decision, exercises all the powers and discretions of the Minister. Further, and as the Minister concedes, in making a decision neither the delegate nor the Tribunal is confined to the material which was initially provided to support satisfaction of the relevant visa criteria. Those criteria are expressed to be satisfied at the time of the decision. If a further skills assessment is completed by TRA before the Tribunal makes its decision, the Tribunal may have regard to it. It is difficult to conceive of a circumstance where the Tribunal must not do so.
The Minister submits that the Tribunal may have considered that it had little by way of discretion left to apply, because all of the steps necessary to the conduct of the review had been taken and procedural fairness was provided for in the taking of each step. That submission implies that, so long as the express requirements of Div 5 are complied with and, relevantly, an invitation has been extended to an applicant for review by the Tribunal to attend a hearing and that hearing has been held, nothing further can be required of the Tribunal.
The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the Tribunal's review while TRA reviewed the second skills assessment, must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so.
The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.
The Minister appears to translate the Tribunal's reference to Ms Li having had sufficient opportunity as "enough is enough" and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.
There remains the possibility that the previous conduct of Ms Li influenced the Tribunal. It had continued to question her about the false information associated with her application despite her repeated admissions and the advice that the case she wished to put forward did not depend upon that information. If her prior conduct was influential, the Tribunal took into account an irrelevant consideration for the reason that Ms Li's conduct per se was not relevant to the visa criteria. The concern of the criteria is with the information relied upon to satisfy them, a point Ms Li's migration agent attempted to make to the Tribunal.
The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.
Conclusion
The Minister's submission, that an act of the Tribunal in the conduct of its review which is unfair or unjust has no consequences for its ultimate decision, is not to the point. Whatever be the consequence of a breach of s 357A(3), a matter which it is not necessary to determine, it cannot be said that the Migration Act evinces an intention that the requirement of the law that the discretionary power in s 363(1)(b) be exercised reasonably not apply. That presumption of law is not rebutted. The Tribunal's decision to affirm the delegate's decision cannot stand.
The appeal should be dismissed with costs.