3.1 Particular (a), ground 1, notice of appeal: failure to accede to the request for an adjournment of the Tribunal hearing
30 Under s 425 of the Act, the Tribunal must invite an applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal has power for the purpose of the review of a decision to adjourn the review from time to time under s 427(1)(b). Whether that power is exercised is a matter within the Tribunal's discretion.
31 Section 427 appears in Division 4 of Part 7 of the Act which deals with the conduct by the Tribunal of review proceedings. Division 4 is subject to s 422B, the effect of which is that the natural justice hearing rule at common law does not apply to the kind of information to which the operative procedural requirements in the Division apply: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 267 [40]-[41] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Nonetheless, the discretion to adjourn a hearing is one which was intended by the Parliament to be, and must therefore be, exercised within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at 362 [63] and 363 [65]-[66] (Hayne, Kiefel and Bell JJ). Unreasonableness, in turn, is "a conclusion which may be applied to a decision which lacks an evident and intelligible justification" (Li at 367 [76] (Hayne, Kiefel and Bell JJ)).
32 The appellant submitted that the Tribunal had refused the adjournment application on the ground that the appellant was in detention and had thereby failed to have regard to the reasons why the appellant requested the adjournment. The question of detention was said to have been given "determinative significance" with no regard given to the representative's lack of preparation by reason of his personal circumstances. Yet, the applicant contended, those in detention ought to have the same right to have their cases heard on their merits as anyone else. In effect, the appellant submitted that the Tribunal Member failed to consider the reasons given by the appellant's representative for the requested adjournment and applied an arbitrary "rule" that, because the applicant was in detention, the request for an adjournment should be refused. Put differently, the appellant submitted that the Tribunal's discretion in considering the adjournment application miscarried because those factors which should have been taken into account were not, namely, whether or not the appellant was able to give evidence and provide arguments in respect of the matter.
33 There might have been some force in these submissions if the only evidence of the Tribunal's reasons for refusing the adjournment application was paragraph [28] of attachment 2 to its reasons: see above at [25]. However, evidence of the Tribunal's reasons is also found in the letter dated 20 November 2013 and the explanation of its decision at the hearing on 4 December 2013. In my view this evidence ought also to be considered in ascertaining the Tribunal's reasons for the decision to refuse the adjournment.
34 In my opinion, it can fairly be inferred from this evidence that the Tribunal Member had regard to three primary considerations.
(1) First, she was concerned not to delay the hearing in circumstances where the appellant was in detention.
(2) Secondly, the Tribunal Member's concern that the appellant was in detention was compounded by the fact that, if the hearing were adjourned, it may take some time before the hearing could be relisted. Thus, the Tribunal Member said in the course of explaining her reasons at the hearing, "…my hearings, my schedule is quite booked up sometime in advance. I am quite booked up given that this [sic] a detention case was reluctant to delay it any further".
(3) Thirdly, both the letter and the explanation on 4 December 2013 make it clear that, contrary to statement in the letter dated 1 November 2013 requiring that a written submission be made setting out all of the applicant's claims before the hearing by 27 November 2013, the Tribunal Member would allow a written submission to be made after the hearing and that, in this way, the concerns articulated by the appellant's representative which underpinned both the request for an extension of time and an adjournment would be met. Fairly read, I read that as including evidence which may accompany any such further submissions, as foreshadowed by the appellant's representative in his written request to adjourn the hearing. I am reinforced in the view by the fact that the Tribunal did in fact receive and consider the further written submission dated 2 January 2014 and the evidence attached to it.
35 It follows that I do not accept the appellant's submission that there was no evidence that the Tribunal had regard to any matter other than the fact of the appellant being in detention. Rather, in my view the Tribunal had regard to a number of considerations which were logically and rationally relevant to the question of whether or not to allow the adjournment and together provided an intelligible and evident justification for the decision. In this regard, the affording of priority to matters where the individual concerned is in detention reflects a concern to ensure that those individuals remain in detention for no longer than is reasonably necessary, as the primary judge pointed out at [62] of his reasons. It is only logical that that concern is given greater weight where, as the Tribunal considered here, the delay may be extended. Furthermore, the Tribunal considered the disadvantage identified by the appellant's representative in terms of his capacity to prepare his submission before the hearing, and its reasons addressed that concern. There was no suggestion made, for example, that an adjournment was required in order to enable inquiries to be made so as to determine whether other witnesses should be called to give evidence at the hearing. It follows that particular (a) of the ground of appeal must be dismissed.
36 Finally, I note that the Court below referred to the decision in House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ) in the context of considering whether the exercise of discretion not to grant the adjournment was tainted by jurisdictional error. I note, however, that that decision is concerned with the approach by a court of appeal in determining whether an exercise of a judicial discretion has miscarried and is not concerned with jurisdictional error in the administrative law context even though analogies may be drawn. Nonetheless, for the reasons I have set out above, I have reached the same conclusion as the primary judge with respect to particular (a).