AMA16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 331
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 331
File number(s): MLG 2233 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 3 May 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of Administrative Appeals Tribunal – (WE) (subclass 050) Bridging (General) visa – where applicant made two adjournment requests on day of Tribunal hearing – where Tribunal denied first adjournment request – where first adjournment was requested as applicant’s solicitor was unwell with Covid-19, was unaware of the hearing, and had not had opportunity to provide legal advice to the applicant – where Tribunal had power under s 367(2) of the Migration Act 1958 (Cth) to extend time for making a decision – where Tribunal further did not make decision within the prescribed period as required by s 367(1) of the Migration Act 1958 (Cth) – found Tribunal’s decision to refuse to adjourn was legally unreasonable. Legislation: Migration Act 1958 (Cth) ss 116(1)(g), 338(4), 360(1), 363(1)(b), 367(2), 476, and 499.
Migration Regulations 1994 (Cth) reg 2.43 and reg 4.27.
Ministerial Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g)-regulation 2.43(1)(p) or (q) paras 4.3, 5, 6 and 7.
Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration, Citizenship and Mulitcultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 LR 259
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 23 February 2023 Place: Melbourne Counsel for the Applicant: Mr Guo Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr Fitzgerald Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 2233 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMA16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for an Order pursuant to s 476 of the Migration Act 1958 (Cth) be granted.
2.A writ of certiori be issued directed to the second respondent quashing the decision dated 26 August 2022.
3.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s Application according to law.
4.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
This is an Application pursuant to s 476 of the Migration Act 1958 (Cth) (Act) for Judicial Review of a decision of the Administrative Appeals Tribunal (Tribunal).
In the decision the Tribunal affirmed a decision of the delegate of the first respondent (Minister) to cancel the applicant’s (WE) (subclass 050) Bridging (General) visa (Bridging Visa).
For the reasons that follow, the Application is upheld.
CONTEXT
The applicant was granted the Bridging Visa on 14 December 2017. The Bridging Visa was granted in conjunction with the applicant’s protection visa application.
Section 116(1)(g) of the Act provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a subclass 050 Bridging (General) visa applies to the holder.
The prescribed grounds for cancellation under s 116(1)(g) of the Act are set out in reg 2.43 of the Migration Regulations 1994 (Regulations). Regulation 2.43(1)(p)(i) provides that a subclass 050 Bridging Visa may be cancelled if the holder has been convicted of, amongst other things, an offence against a law of the Commonwealth, a State, or a Territory.
The applicant’s Bridging Visa was cancelled on 10 August 2022 on the basis that the applicant had been convicted of the following offences:
(1)being armed/pretending to be armed in a way that may cause fear;
(2)breach of a family violence restraining order;
(3)common assault and circumstances of aggravation or racial aggravation;
(4)criminal damage or destruction of property (2 counts);
(5)made a threat to unlawfully do an act-aggravated; and
(6)unlawful assault and thereby did bodily harm with circumstances of aggravation. [1]
[1] Tribunal’s decision at [2]
It is not disputed that the applicant was convicted of the above offences nor that a ground for cancellation under s 116(1)(g) exists. [2]
[2] Tribunal’s decision at [22]
Communication on 12 August 2022
On 12 August 2022, the Application was lodged with the Tribunal for review of the delegate’s decision (Application for Review).[3] At the time, the applicant was in immigration detention at Yongah Hill Immigration Detention Centre.[4]
[3] CB 46
[4] CB 47
The Application for Review lodged by the applicant provided that the applicant was represented by Ms Chelsea Clark of “Legal Aid Victoria”.[5] An email address was provided for Ms Clark, however, no telephone number or mobile telephone number was supplied.[6] The Application for Review also provided that the applicant did not require an interpreter when communicating with the Tribunal.[7]
[5] CB 50
[6] CB 50
[7] CB 48
At 10.01pm AEST, the Tribunal sent an email to the email address of the applicant’s legal representative as provided in his Application for Review. That email address was <[email protected]>. The email attached the following correspondence:
(1)a letter to the legal representative acknowledging application;
(2)a letter to the Applicant acknowledging application;
(3)a multilingual factsheet provided by the Tribunal; and
(4)an information brochure M15 regarding information for review applicants.
The Tribunal received an email at 1.03pm AEST saying that the email was undeliverable.
The Tribunal then sent a further email at 2.37pm AEST, attaching the same documents and sent to the email address: <[email protected]>. The Tribunal received a further email at 2.38pm AEST saying that the email was undeliverable.
On that same day, the Tribunal sent an email to Yongah Hill Immigration Detention Centre, at 1.10pm AEST. That email requested that the correspondence be hand delivered to the applicant and attached:
(1)a letter from the Tribunal to the legal representative acknowledging application;
(2)a letter to the applicant acknowledging application;
(3)a multilingual factsheet provided by the Tribunal; and
(4)an information brochure M15 regarding information for migration review applicants.
At 4.03pm AEST, the Tribunal sent an email to the applicant’s legal representative at <[email protected]> requesting a copy of any Police Facts Sheet and sentencing information relating to the offences of the applicant. It requested the documents by no later than 15 August 2022. At 4.04pm AEST, the Tribunal received an email saying that the email was undeliverable.
At 5.08pm AEST, the Tribunal sent an email to the applicant’s personal email address, stating that the email address for the applicant’s representative appears to be incorrect and requested to be provided with the correct email address.
Further communication leading up to hearing
On 15 August, the Tribunal sent an email to the Yongah Hill Immigration Detention Centre requesting hand delivery to the applicant at 4.02pm AEST. The email included the following attachments:
(1)letter from the Tribunal to the applicant’s legal representative requesting clarification of representative contact details;
(2)letter from the Tribunal to the applicant requesting clarification of representative contact details;
(3)the Tribunal’s “Change of Contact Details – MR Decision” Form MR6.
The letter to the applicant requested the updated form with the correct contact details be provided by no later than 16 August 2022.
This email was also sent to the applicant’s legal representative at 4.27pm AEST, with the Tribunal receiving an “undeliverable” email at 4.27pm AEST.
The Tribunal sent a further email to the Yongah Hill Immigration Detention Centre requesting hand delivery to the applicant at 4.35pm AEST. This email included an invitation for the applicant, advising of the hearing on 18 August 2022 at 12.00pm AWST.
On 16 August 2022, the Tribunal sent an MS Teams invitation link to the applicant’s legal representative at <[email protected]> and at <[email protected]>. Again, this returned an undeliverable email.
On the morning of the hearing, 18 August 2022, Yongah Hill Immigration Detention Centre sent an email to the Tribunal at 10.43am AWST, confirming the invitation correspondence sent on 15 August 2022 was delivered to the applicant “by Detention Service Officer in a sealed envelope on 16 August 2022” but stated they were unable to hand deliver the invitation as the applicant was “currently in quarantine Status Resolution”.
LEGISLATIVE CONTEXT
Section 363 of the Act sets out the powers of the Tribunal for the purpose of the review of a decision. Section 363(1)(b) of the Act provides that the Tribunal may adjourn the review from time to time.
Section 367 of the Act provides as follows:
Certain bridging visa decisions – to be made within prescribed period
(1)Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.
(2)The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
MINISTERIAL DIRECTION 63
Pursuant to s 499 of the Act, in considering whether a bridging visa should be cancelled on the basis of the ground prescribed in reg 2.43(1)(p), the Tribunal must comply with Ministerial Direction No. 63, Bridging E visas - Cancellation under section 116(1)(g)-regulation 2.43(1)(p) or (q) (Direction).
The Direction relevantly provides that a decision-maker must take into account the primary and secondary considerations in Part Two of the Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.
The primary considerations are set out in paragraph 6 of the Direction and provide as follows:
(a)the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and
(b)the best interests of children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are set out in paragraph 7 of the Direction and are as follows:
(a)the impact of a decision to cancel the visa on the family unit (such as whether the cancellation will result in the temporary separation of the family unit);
(b)the degree of hardship that may be experienced by the visa holder if their visa is cancelled;
(c)the circumstances in which the ground for cancellation arose (such as whether there are mitigating factors that may be relevant, as well as the seriousness of the offence, the reason of the person being the subject of a notice (however described) issued by Interpol, or the reason for the person being under investigation by an agency responsible for the regulation of law enforcement);
(d)the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulment obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status; and
(e)delegates may also consider any other matter they consider relevant.
Paragraph 5 of the Direction provides that when taking the primary and secondary considerations in Part Two of the Direction into account, the decision-maker must be informed by the principles in paragraph 4.3 of the Direction.
The Direction also provides that both primary and secondary considerations may weigh in favour of, or against, cancellation of a Bridging E visa; the primary considerations should generally be given greater weight than any secondary considerations; one primary consideration may outweigh the other primary consideration; in applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should generally be given greater weight than information from other sources.[8]
[8] Direction, paragraph (5.1)
THE HEARING
The hearing occurred on 18 August 2022.
The applicant appeared via MS Teams. The applicant’s legal representative, Ms Clark, attended by telephone.
It is uncontested that at the commencement of the hearing Ms Clark advised the Tribunal that she had just become aware of the hearing and was in isolation with COVID-19. Ms Clark sought an adjournment on behalf of the applicant. The Tribunal advised Ms Clark that it was not going to adjourn the hearing. [9] Ms Clark then sought a brief 15 minute adjournment to “understand what has happened and advise my client.”[10] That adjournment was granted with the hearing resuming 12 minutes later.
[9] Transcript, pg 4 at 45-47
[10] Transcript, pg 5
In relation to these matters, the Tribunal in its statement of decision and reasons at [15] and [16] states as follows:
15.The applicant’s representative Miss Clark stated she had just become aware of the hearing after being contacted on her mobile telephone by the applicant. She stated she was at home in isolation with COVID-19 and requested an adjournment. The Tribunal noted its staff had made considerable attempts to obtain her contact details through the applicant and through Legal Aid Victoria. The Tribunal, noting Reg. 4.27 and the prescribed period of making a decision within 7 working days after the application for review was received, stated that the scheduled hearing would continue. The Tribunal furthermore notes it had requested the applicant, via correspondence sent to Yongah Hill IDC to be hand delivered to him, provide updated contact details for his representative. The fact the applicant had his representative’s mobile telephone number and was able to contact his representative just prior to the hearing suggests he had access to updated contact information for his representative and failed to provide such information to the Tribunal prior to his hearing, despite the Tribunal’s request. The applicant has stated through his representative that he had no access to his email from 10 August 2022 for seven days. The Tribunal would note that the applicant was able however to lodge his application for review on 12 August 2022. The Tribunal would furthermore note that the applicant, having received correspondence from the Tribunal by hand at Yongah Hill IDC, could have passed on any updated contact details for his representative to the Tribunal through the IDC staff.
16.The Tribunal at the hearing granted a short adjournment for the applicant and his representative to discuss the matter. The Tribunal stated that it would proceed with the hearing, but it would welcome any written submissions the applicant and his representative wished to make post-hearing and take those into account. [11]
[11] Decision at [15]- [16]
THE TRIBUNAL’S DECISION
On 26 August 2022, the Tribunal provided its statement of decision and reasons affirming the decision under review (Tribunal’s decision).
In relation to the primary considerations, the Tribunal referred to the applicant’s convictions of a range of criminal offences, including the committing of acts of violence towards his ex-partner and took into account that the prescribed grounds for cancellation in reg 2.43(1)(p) should be applied rigorously in that every instance of non-compliance should be considered for cancellation. The Tribunal found that there were no children under the age of 18 in Australia who would be affected by the cancellation.[12]
[12] Decision at [28-29]
As to the secondary considerations, the Tribunal:
(a)whilst noting that the applicant had an aunt and uncle who live in Melbourne and that the applicant’s aunt had, post hearing, offered to pay for the applicant’s journey to Melbourne and provide him with accommodation, found that the cancellation of the applicant’s visa would have no particular impact upon his family unit. The Tribunal found this consideration weighed in favour of cancellation;[13]
(b)in considering the degree of hardship that may be experienced by the applicant if the visa was cancelled, found that there was no medical evidence before it concerning the applicant’s mental and psychological health, that he was depressed, that his mental health would deteriorate should he remain in immigration detention or that he had been receiving treatment for his mental and psychological health. The Tribunal found that there was no evidence before it upon which it could be satisfied that the applicant’s psychological health would deteriorate should he remain in detention. The Tribunal was not satisfied that the applicant’s mental and psychological health would be harmed and he would be subject to undue hardship in relation to his mental and psychological health, should his visa remain cancelled and he remain in immigration detention;[14]
(c)did not accept that being precluded from pursuing employment interests whilst in immigration detention represented a hardship to the applicant;[15]
(d)accepted that remaining in immigration detention can cause a degree of hardship but did not consider it to be either unfair or punitive in relation to the applicant. The Tribunal did not accept that Australia’s immigration detention system illustrated the imposition of onerous or oppressive hardship to the applicant through his remaining in immigration detention;[16]
(e)accepted that the cancellation of the applicant’s visa and the fact that he would remain in detention until his protection visa review was finalised would impose some limited hardship upon the applicant. However, the Tribunal did not consider the hardship in the circumstances to be significant or onerous;[17]
(f)found the degree of hardship that may be caused to the applicant weighed slightly against cancelling the visa;[18]
(g)found that on the evidence before it the applicant had been convicted of a number of serious criminal charges, including assault, to which he had pleaded guilty, noting that at that time he had the benefit of legal representation. The Tribunal took into account the applicant’s expressions of regret and remorse for his behaviour and that he was given a suspended sentence of 16 months rather than a period of imprisonment. The Tribunal also noted that the applicant spent several months remanded in custody before his case went before the courts. However, the Tribunal considered that the convictions involved and the commission of acts of violence were serious. The Tribunal also made reference to the principles contained in paragraph 4.3 of the Direction and the low tolerance of the Australian Government for criminal behaviour of any nature by non-citizens. The Tribunal considered the circumstances in which the ground for cancellation arose weighed strongly in favour of cancelling the visa;[19]
(h)considered the possible consequences of cancellation of the applicant’s visa, including whether the cancellation could result in indefinite detention or removal in breach of Australia’s non-refoulment obligations. The Tribunal acknowledged the applicant would become an unlawful non-citizen if his visa was cancelled and that indefinite detention was a possibility. The Tribunal took into account the potential ongoing delay in finalising the applicant’s protection visa when considering the possible consequences of cancellation of the visa. The Tribunal considered the potential impact that ongoing detention may have on the applicant. The Tribunal also noted that remaining in the community as a non-citizen who has been convicted of criminal behaviour and does not hold a substantive visa is a privilege and not a right. The Tribunal found that there is no suggestion that the applicant would not be able to remain in Australia and finalise the review of his protection visa application, whilst acknowledging that a final outcome may take further time. The Tribunal considered that the possible consequences of cancellation of the applicant’s visa, including the fact that the applicant is liable for detention under s 189 and removal under s 198 of the Act, neither weighed in favour nor against the cancellation of the visa.[20]
[13] Decision at [30]
[14] Decision [31-34]
[15] Decision at [35]
[16] Decision at [36]
[17] Decision at [37-38]
[18] Decision at [39]
[19] Decision at [40-43]
[20] Decision at [44]- [48]
The Tribunal took a range of other matters into account, which are not presently relevant.[21]
[21] Decision at [49] –[71]
Ultimately, the Tribunal considered that the applicant’s criminal convictions outweighed other considerations and were such that the visa should be cancelled.[22]
[22] Decision at [75]
PROCEDURAL CONTEXT
The applicant applied to this Court on 3 October 2022. Accompanying the Application was an affidavit in support, which annexed the Tribunal’s decision and reasons of 26 August 2022.
The applicant initially applied for orders seeking an extension of time as the Application was made one day out of time. The Minister originally sought in their response that the extension of time Application be dismissed. The matter was subsequently listed for hearing with respect to the Application for extension of time. However, on 23 January 2023 the Minister filed an Amended Response stating: “the first respondent does not object to the order being to extend the time for filing the application”.
On 3 February 2023, Orders were made in chambers granting the extension of time Application. The matter was listed for hearing with respect to the substantive Application. The applicant was directed to file and serve an Amended Application, written submissions and any additional evidence by 10 February 2023.
An Amended Application was filed on 10 February 2023.
The Application contained 8 grounds as follows:
(1)the Tribunal misunderstood the law in relation to the Applicant’s request for an adjournment (Ground 1);
(2)the Tribunal’s decision to refuse to adjourn was legally unreasonable (Ground 2);
(3)the Tribunal failed to actually exercise its jurisdiction (Ground 3);
(4)the Tribunal’s reasoning in relation to the prospect of prolonged detention was illogical in that it focussed on the time the applicant’s substantive visa application had remained undetermined and/or the few days the applicant had been detained, when the submission put to it about prolonged detention was necessarily in relation to future detention, not delay associated with determination of the substantive visa application or time already spent in detention (Ground 4);
(5)the Tribunal failed to consider central evidence advanced by the applicant in relation to the effect of detention on him as a discretionary factor against cancellation, namely the evidence that extended immigration detention has on detained person’s mental health (Ground 5);
(6)the Tribunal misunderstood and therefore failed to comply with Direction 65 [sic] in assigning adverse weight to the factor concerning the impact of cancellation on the family unit (Ground 6);
(7)the Tribunal failed to consider a central submission made by the applicant that the cost of immigration detention was a discretionary factor against cancellation (Ground 7); and
(8)the Tribunal failed to consider central evidence and the related submission advanced by the applicant that his exposure to criminals in detention was a discretionary factor against cancellation (Ground 8).
Alongside the Amended Application (Application), an affidavit affirmed by the applicant’s legal representative was also filed, as well as an Outline of Submissions on 10 February 2023. In this affidavit, the applicant’s legal representative states that at the time of the hearing she had not been retained to act for the applicant, was unaware that he had sought review of the decision to cancel his Bridging Visa, she had tested positive to COVID-19 the day prior to the hearing, and was isolating at home on the day of the hearing. She further states that at the commencement of the hearing, she attempted to tell the Member:
(1)it was a non-work day for her;
(2)she was at home;
(3)she had COVID-19;
(4)she was unwell;
(5)she had no idea about the hearing; and
(6)she had not had an opportunity to provide any advice to the applicant.
A subsequent affidavit affirmed by the applicant’s legal representative was filed on 17 February 2023. In this affidavit, she states that she has received an audio recording of the hearing, which includes the confidential conference between herself and the applicant during a short adjournment period.
A further affidavit affirmed by the applicant’s legal representative was filed on 20 February 2023. This affidavit annexed a copy of an updated transcript of the hearing. The applicant’s legal representative states that a legal assistant listened to the audio and made corrections to this transcript.
Leave was granted for the filing of the affidavits of 17 and 20 February 2023.
The Minister filed their Outline of Submissions on 20 February 2023 and their List of Authorities on 21 February 2023.
The applicant filed their List of Authorities on 21 February 2023.
The applicant filed an affidavit on 22 February 2023; one day prior to the hearing. The applicant made an oral application for leave to rely on that affidavit. The affidavit attests to matters in relation to the applicant’s knowledge of communications between the applicant and the Tribunal prior to the hearing, which were not before the Tribunal. The Minister objected to paragraphs 3-6 and 8 of that affidavit on the grounds of relevance. The Minister submitted that the matters attested to in the affidavit were not before the Tribunal and to admit that evidence now would be to invite the Court to impermissibly determine what it would have done in the Tribunal’s position. The Minister did not seek to cross examine the applicant. In those circumstances, the question of whether the applicant’s affidavit would be admitted, and if so, what weight it ought be given was reserved. For the reasons set out later in this decision, I have concluded that such matters are not relevant to the issues before the Court and accordingly, decline to admit the applicant’s affidavit into evidence.
CONSIDERATION
Grounds 1 and 2
It is convenient to deal with Grounds 1 and 2 together.
Applicant’s submissions
In relation to Ground 1, in the Application, the applicant submits that by refusing the applicant’s request for an adjournment of the hearing, the Tribunal proceeded on the basis that a substantive decision on the review had to be made within seven working days, not cognisant of the possibility that under s 367(2) time could be extended.
As to Ground 2, in their Application, the applicant submits that the Tribunal’s refusal to adjourn the hearing was legally unreasonable in that:
(1)the Tribunal wrongly concluded that the applicant had the natural ability to contact his lawyer substantially in advance of the hearing;
(2)it was obvious to the Tribunal at the hearing, including because it was told, that the applicant’s lawyer was engaged very late;
(3)the applicant’s lawyer told the Tribunal as part of the request for adjournment that she had contracted COVID-19 and was isolating;
(4)the request for adjournment was a short request; and
(5)alternatively, the Tribunal failed to consider its discretion under s 367(2).
In their Outline of Submissions, the applicant submits that s 367(2) allows the time frame for the making of a decision to be extended with the consent of the applicant. That is not contested by the Minister. The applicant refers to paragraph [15] of the Tribunals’ decision (set out paragraph 34 above) and submits that the text strongly suggests that the Tribunal considered that it was required to make its decision within seven working days, and that it had no flexibility. The applicant submits that the Tribunal’s decision makes no reference to any awareness that the presumptive time limit could have been extended pursuant to s 367(2). It submits that the Tribunal proceeded with the hearing on the false premise that time could not be extended and that this was a misunderstanding of the Act and an error of law. [23]
[23] Applicant’s Outline of submissions at [15]-[17]
The applicant further submits that even if the Tribunal did appreciate or consider s 367(2), other facts strongly suggest legal unreasonableness. Firstly, the applicant submits that the Tribunal did not reject that Ms Clark had only become aware of the matter, nor that she was isolating at home after becoming unwell with COVID-19. Secondly, the applicant submits that no prejudice was identified by the Tribunal. Thirdly, the applicant submits that the 12 minute adjournment provided by the Tribunal and the permission to provide post-hearing submissions did not cure the unreasonableness of the refusal to adjourn. The applicant submits that he was still required to give oral evidence that day, without the benefit of preparation and detailed considered legal advice. Finally, the applicant submits that the Tribunal did not make the decision within the required statutory time frame, giving itself eight further days until 26 August 2022, making the refusal to adjourn “all the more unintelligible”.
In oral submissions the applicant initially addressed Grounds 1-3 collectively. In relation to these matters, the applicant submitted that the Tribunal’s refusal to adjourn the hearing was legally unreasonable in light of Ms Clark’s lack of knowledge and surprise of the hearing, the consequent absence of preparation and opportunity to give advice to the applicant, Ms Clark’s illness and isolation due COVID-19 and her advice to the Tribunal that due to being on day 2 of COVID-19 it was “not really feasible” that she provide written submissions within two business days. Additionally, the applicant submits that the following factors are also relevant to the unreasonableness of the Tribunal’s decision not to adjourn the hearing:
(a)the consequences for the applicant if the Tribunal affirmed the decision to cancel the applicant’s Bridging Visa;
(b)pursuant to s 367(2) the Tribunal, with the consent of the applicant, had the ability to extend time for the making and notification of the decision;
(c)there was a failure by the Tribunal to appreciate the existence of the discretion in s 367(2);
(d)the statutory obligation of the Tribunal pursuant to s 360(1) is to invite the applicant to a hearing at which they can present evidence and argument relating to the issues arising in relation to the decision under review. That obligation was not discharged and is not remedied by affording the applicant to submit written submissions after the hearing; and
(e)the Tribunal incorrectly assumed that the applicant had been aware of the need to provide correct contact details for Ms Clark and had chosen not to do so.
Minister’s submissions
In their written submissions, the Minister submits that the crux of Ground 1 and, in part Ground 2, is that the Tribunal was not cognisant of the possibility that it could extend time for making its decision under s 367(2) of the Act. The Minister submits that the applicant invites the Court to draw the inference that the Tribunal erred simply because it did not grant the adjournment and did not refer to the power in s 367(2) in its reasons. The Minister submits that the Court should not draw that inference.
The Minister submits that the Court should not be astute to discern error[24] and the Tribunal’s reasons “must be read fairly and not in an unduly critical manner”[25]. As such, the proper inference to be drawn from paragraph [15] of the Tribunal’s decision is that it was cognisant of the imposed time limit and its power to adjourn the hearing but decided not to do so because:
(a)its staff “had made considerable attempts to obtain [Ms Clark’s] contact details”;
(b)it “had requested the applicant…provide updated contact details” and that request had been “hand delivered to him”; and
(c)despite having contact details for his nominated representative, the applicant “failed to provide such information to the Tribunal prior to his hearing”.
[24]Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 LR 259 at [25],[28]
[25]BVD17 v MIBP (2019) 268 CLR 29 at [38]
As to the remainder of Ground 2, the Minister submits that there was nothing unreasonable about the manner in which the Tribunal went about its task. The Minister submits that the Tribunal did in fact grant a short adjournment but otherwise declined to adjourn the hearing to a later date. It submits that it did so in circumstances where the applicant had sufficient notice of the hearing and the Tribunal had made repeated attempts to contact his nominated legal representative.
In oral submissions the Minister conceded that the power to adjourn proceedings contained in s 363(1)(b) of the Act is to be exercised reasonably. The Minister submitted that it was relevant that the applicant’s legal representative did appear, made submissions and the applicant gave evidence. The Minister further submits that the power to adjourn proceedings was exercised by the Tribunal in granting the 12 minute adjournment and therefore what is being contested is how that power was exercised.
As to s 367(2), the Minister submits that the Tribunal was not called upon at the hearing to exercise that power. In oral submissions the Minister submitted however, that it ought be inferred from all the circumstances that the Tribunal did in fact exercise the power under s 367(2) to extend the period for making and notifying of the decision.
Applicable principles - legal unreasonableness
The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of extensive analysis by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] (Li) and the Federal Court of Australia Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Wigney J summarised the relevant principles as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Liat [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:Liat [100]-[102].
(i)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 or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)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: Liat [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Recently, in Minister for Immigration, Citizenship and Mulitcultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
Analysis
The Minister contends that the power to adjourn proceedings was exercised by the Tribunal in granting the 12 minute adjournment and therefore what is being contested is how that power was exercised. That contention must be rejected. The transcript reveals that the following exchange occurred between Ms Clarke and the Tribunal:
MS CLARKE: Excuse me, Member, can I just interrupt. I haven’t had an opportunity at all to provide any advice to my client in relation to this hearing. I’m aware there is a timeframe, I’m not sure whether there’s a, we can request an adjournment of that…
DEPUTY PRESIDENT: Well I am not planning to adjourn this today. I will welcome it, though, you wish to make any supplementary submissions. I’ll look at those. But I’m not going to adjourn this kind of hearing this afternoon, no.
MS CLARKE: Can we seek a brief fifteen-minute adjournment, so that I can at least understand what has happened, and advise my client?
There were therefore two requests for an adjournment: the first for the hearing to be adjourned (First adjournment request) and, in light of the Tribunal’s refusal of that request, the second for a 15 minute adjournment to allow Ms Clarke to “at least understand what has happened” and advise her client.[26] That this is so is also reflected in the Tribunal decision at paragraphs [15] and [16], which are set out above. It is the refusal of the First adjournment request which is at issue in these proceedings.
[26] Transcript P-4, Line 39-47, P-5 Line 1-5
Paragraph [15] of the Tribunal’s decision identifies that the First adjournment request was made. The Tribunal does not, expressly, state that the matters set out in that paragraph are “the reasons” for the decision to refuse the First adjournment request. However, I consider that on a fair reading of the Tribunal’s decision the reasons for the refusal to decline the First adjournment request are those matters contained in paragraph [15]. Those reasons appear to be that:
(a)the Tribunal had made considerable attempts to obtain Ms Clarks’ contact details through both the applicant and Legal Aid Victoria; and
(b)regulation 4.27 provided a period of seven working days from receipt of the Application for Review for the for making of a decision.
The remainder of paragraph [15] “notes” a range of further matters. The applicant submits that the imputation arising from the remainder of paragraph [15] is that the applicant had access to updated contact information for Ms Clark and failed to provide that information to the Tribunal despite the Tribunal’s request. The applicant submits that this is inconsistent with the evidence and seeks leave on this basis to adduce the evidence contained in the applicant’s affidavit as to the applicant’s knowledge of the communications from the Tribunal to the applicant prior to the hearing. Even if the imputation advanced by the applicant is correct, none of the matters sought to be relied upon by the applicant in the affidavit were before the Tribunal at the time. In those circumstances, I accept the Minister’s submission that to admit that evidence now would seek impermissible merits review.
However for the following reasons, when considered collectively, I consider that the decision to refuse the First adjournment request lacked an evident and intelligent justification and was legally unreasonable.
Firstly, whatever attempts may have been made by the Tribunal to contact Ms Clark prior to the hearing, Ms Clark’s uncontested evidence is that she did not know of the hearing prior to its commencement and was taken by surprise, had not had an opportunity to provide any advice to the applicant or take instructions, and, most significantly, she had COVID-19, was at home isolating and unwell and she had attempted to inform the Tribunal of this prior to the hearing commencing. This is reflected in paragraph [15] of the Tribunal’s decision. Accordingly, while as contended for by the Minister, the applicant’s legal representative did appear, made submissions and the applicant gave evidence, this occurred in circumstances where to the Tribunal’s knowledge at the time:
(a)Ms Clarke was unaware of and unprepared for the proceedings;
(b)the applicant had not had the benefit of legal advice or preparation for the hearing with assistance of legal representation; and
(c)most significantly, Ms Clarke was in isolation and unwell with COVID-19.
Secondly, the refusal to adjourn the hearing and proceed at that time, notwithstanding the above circumstances, was a matter of potentially considerable significance. The consequences for the applicant if the Tribunal affirmed the decision to cancel the applicant’s Bridging Visa are grave.
Thirdly, pursuant to s 367(2) the Tribunal, with the consent of the applicant, had the ability to extend time for the making of the decision. Therefore the Tribunal could, potentially, have adjourned the hearing and, with the agreement of the applicant, extended the period for the making of the decision. Further, the position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay: Li at [80]. However, I reject the submission that it ought be inferred that the Tribunal failed to appreciate the existence of the discretion in s 367(2) and therefore mistook the law because the Tribunal’s decision makes no reference to that discretion. The Tribunal is under no obligation to give reasons for the exercise or non-exercise of any procedural power. The mere failure to do so cannot support the drawing of an inference that the exercise of the discretion was not considered: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [40].
Fourthly, regard must be had to s 360(1) of the Act. The purpose of s 360(1) is to provide an applicant with the opportunity to appear before it 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 a decision: Li at [60]. Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant with a real chance to present his or her case: Li at [61]. Section 360(1) is directed toward the provision of a meaningful opportunity at the hearing of a review. I accept the submission that this cannot be supplanted by an invitation to provide material post-hearing. Further, at paragraph [54] of the Tribunal decision the Tribunal rejected a submission made post-hearing because the matter was not raised by the applicant at the hearing.
Fifthly, the Tribunal, whilst failing to grant the First adjournment request, did not decide the decision within 7 working days as provided for by s 367(1). The decision was not handed down until 26 August 2022. I accept the submission of the applicant that this renders the refusal to grant an adjournment of the hearing all the more “unintelligible”. In oral submissions, the Minister submitted that it ought be inferred that the Tribunal exercised its power pursuant to s 367(2), although this submission was not strongly pressed. I reject that submission. The Minister conceded that the Tribunal’s decision does not refer to s 367 of the Act or the exercise of the power under s 367(2) and did not suggest that any submissions were put to or from the Tribunal in relation to extending time pursuant to s 367(2) of the Act. I reject that the agreement of the applicant to extend the time frame under s 367(2) or the actual exercise of that power can be inferred from the invitation to the applicant to provide post hearing written submissions by “Monday”,[27] and the statement by the Tribunal that it would write to the applicant and advise him of the “outcome some time next week”.[28] Firstly, in relation to the invitation to make further submissions by “Monday” Ms Clark informed the Tribunal that this was “not really feasible” as she was unwell with COVID-19. [29] Secondly, the time frame for making the decision and notifying the applicant pursuant to s 367(1) was 23 August 2022, being the Tuesday of the following week. In that context, I am unable to see how an invitation to file material before that time and a statement that an outcome would be provided sometime next week, can give rise to the inference contended for by the Minister.
[27] Transcript P-23, 15-20
[28] Transcript P-25, 31-36
[29] Transcript P-23, 23-25
For all of the above reasons, I consider that the decision to refuse to the First adjournment request lacked an evident and intelligent justification and was legally unreasonable.
Grounds 3-8
Given the above conclusion, it is not necessary that I consider Grounds 3- 8 advanced by the applicant.
CONCLUSION
The decision to refuse the First adjournment request lacked an evident and intelligent justification. It does not fall within a range of possible, acceptable outcomes which are defensible in respect of fact and law. It was, therefore, legally unreasonable.
The matter is remitted back to the Tribunal for reconsideration in accordance with law.
The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 3 May 2023
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