Leave to appeal the 18 March decision
38 In an application to set aside a decision which has dismissed a proceeding for failure to appear, the applicant must usually satisfy two criteria. First, the applicant must provide an adequate explanation for his failure to appear. Second, the applicant must also show that he has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order (Allesch v Maunz (2000) 203 CLR 172 (Allesch) at [48] per Kirby J). Alternatively expressed, if no different result would be reached on a rehearing, then an application to set aside may be refused (Allesch at [28] per Gaudron, McHugh, Gummow and Hayne JJ).
39 First, on 18 March 2014 Judge Riethmuller was not persuaded that the applicant had given an adequate excuse for not appearing at the hearing on 30 January 2014. The applicant provided only limited material to his Honour to explain his failure to appear. The medical evidence exhibited to the applicant's affidavit before his Honour did not indicate that the applicant was unable to appear at the hearing on 30 January 2014. Further, the applicant's assertion at the hearing on 18 March 2014 that he had been "ill with kidney problems" for which he took "medication" was also found by his Honour not to have "demonstrated a good excuse for not attending" (at [8]).
40 As to these factual findings, nothing has been advanced by the applicant pointing to any arguable error sufficient to warrant a grant of leave to appeal.
41 Second, his Honour was not persuaded that the applicant had an arguable case in any event on his application for judicial review. The only potential issue identified in the application for judicial review was whether the Tribunal had committed a jurisdictional error in refusing to grant the adjournment sought by the applicant. The issue was whether the Tribunal's refusal to grant the adjournment fell outside the boundaries of "legal reasonableness". No other ground amounting to jurisdictional error was put to his Honour concerning the failure to grant the adjournment; for the sake of completeness, I do address the issue of procedural fairness later in these reasons given the conceptual overlap between the categories of jurisdictional error said to be constituted by, on the one hand, a decision refusing an adjournment which is said to be legally unreasonable and, on the other hand, such a decision being seen through the related perspective, in terms of its consequence, as being said to deny a fair hearing (Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 (Singh) at [50]).
42 The standard of legal reasonableness takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general discretionary powers are being exercised (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li)).
43 The standard of legal reasonableness applicable to the exercise of power under s 363(1)(b) of the Migration Act is informed by, inter alia, ss 353 and 360(1). As the plurality judgment in Li indicates, the exercise of power must be "legal and regular, not arbitrary, vague and fanciful" (at [65]). A lack of legal reasonableness may be concluded from an exercise of power "which lacks an evident and intelligible justification" (at [76]). It may also be concluded from "an obviously disproportionate" response or exercise of power in the particular circumstances (at [74]). Relatedly, French CJ stated that it may also be concluded from "a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut… it exceeds what, on any view, is necessary for the purpose it serves" (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an "evident and intelligible justification" or "an obviously disproportionate" exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness.
44 How is legal unreasonableness to be assessed in the present case?
45 This Court in Singh has emphasised two points. First, it is not appropriate merely to take the facts in Li and address factual similarities or differences (at [41]-[42] per Allsop CJ, Robertson and Mortimer JJ). Li is not some factual checklist against which other factual scenarios are merely to be either analogised or distinguished. In each context in which it is to be assessed, "legal unreasonableness is invariably fact dependent" (Singh at [42] and [48]). Whether a particular exercise of power descends into legal unreasonableness requires "careful evaluation" of the evidence in the particular application for judicial review (at [42]). Second, if the Tribunal has given reasons for the relevant exercise of power under challenge, then it is in those reasons "to which a supervising court should look in order to understand why the power was exercised as it was" (at [47]). The "intelligible justification" must be found within the reasons explicitly or implicitly. But such a constraint against looking at exogenous justifications may not apply when considering the related ground of whether there has been a lack of procedural fairness or a fair hearing flowing from a refusal of an adjournment (at [51]).
46 After evaluation of his Honour's reasons given for the 18 March decision, I do not discern any arguable error in his Honour's approach to assessing this asserted jurisdictional error of the Tribunal sufficient to warrant a grant of leave to appeal.
47 In the present case, there is some indication in the Tribunal's reasons for refusing to grant the adjournment. Accordingly, that is the appropriate point for obtaining an understanding as to why the power was exercised to refuse the adjournment. It is the appropriate place from which to determine whether there was an "intelligible justification".
48 As the primary judge rightly accepted, in the present case, there was no good reason to suspect that if an adjournment had been granted the relevant criteria for the Subclass 572 student visa would have been met. Second, the adjournment request contained only the general and vague assertion that the applicant was waiting for unspecified documents. The applicant gave little, if any, indication of what those documents were, what steps he had taken to obtain them, and like matters. Third, the applicant did not request an adjournment until six days before the scheduled hearing. Fourth, the period for which an adjournment was sought, being "at least three months", was lengthy and apparently arbitrary, rather than defined by reference to a specific future event.
49 Finally, as the Minister points out, and in terms of the nature of the exercise before the primary judge, applying 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" (Li at [66]).
50 In my view, no arguable error has been identified in how the primary judge addressed this issue, sufficient to warrant the grant of leave to appeal.
51 Further, there is no other arguable error which might have risen to the level of a jurisdictional error in terms of any lack of procedural fairness or a fair hearing in the Tribunal's failure to grant the adjournment. First, the applicant was informed on 29 June 2011 and 9 November 2012 of the need to provide supporting material. Second, although the applicant in part sought an adjournment to put forward financial material which he now says he was not given sufficient time to obtain, the Tribunal dealt with the matter on the basis of the lack of enrolment evidence in relation to an appropriate course of study (see [22] of the Tribunal's reasons). In other words, the deficiency concerning the financial material and the adjournment sought by the applicant to obtain it did not address, and would not have addressed, the enrolment question; indeed, for completeness only, that deficiency concerning a lack of enrolment (or application to enrol) evidence was still extant at the time of the 18 March decision (see his Honour's reasons at [5]) and it seems even now. On the face of the Tribunal's reasons at [20], taken within the factual matrix set out at [6]-[9] above, I cannot detect any arguable lack of procedural fairness or a fair hearing.
52 Leave to appeal the 18 March decision will be refused.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach .