AZADQ v Minister for Immigration

[2014] FCCA 2623

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2623

Catchwords:

MIGRATION – Judicial review of a decision of the Refugee Review Tribunal (RRT) – whether RRT acted unreasonably in deciding not to adjourn a matter before it in circumstances where the applicant indicated to the RRT that he wished to put further information before it – failure to afford natural justice.

Legislation:

Migration Act 1958 (Cth), ss.420, 422B, 425, 427 & Part VII

R v Anderson ; ex parte Ipect-Eyre Pty Ltd (1965) 113 CLR 177
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Steed v The State Government Insurance Commission (1986) 161 CLR 141

Applicant: AZADQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 163 of 2013

Judgment of: Judge Simpson

Hearing date: 18 October 2013

Date of Last Submission: 18 October 2013

Delivered at: Adelaide

Delivered on: 3 December 2014

REPRESENTATION

Counsel for the Applicant: Mr M Wait

Solicitors for the Applicant: James Swanson

Counsel for the Respondents: Mr P d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The decision of the second respondent made 1 May 2013 affirming the decision of the Delegate of the first respondent made on 1 February 2013 is quashed.

2. The second respondent, differently constituted, shall determine according to law the application made to it to review the decision of the delegate of the first respondent made on 1 February 2013.

3. The first respondent shall pay the applicant his costs to be agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 163 of 2013

AZADQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal made under the Migration Act 1958 (Cth) (“the Act”) not to grant the applicant a Protection (Class XA) Visa.

2. In these reasons, the applicant’s father is referred to as “Mr X”.

3. Before the commencement of submissions, I heard argument in relation to an affidavit that the applicant wished to rely on.  It was an affidavit of James Howard Swanson, solicitor for the applicant, filed on 16 October 2013 (“the Swanson affidavit”) and it was in the following terms:

   “1.I am the solicitor for the Applicant.  I was first instructed in this matter on 9 July 2013.

   2.I swear this affidavit in support of the application in a case filed contemporaneously herewith.

   3.On 9 July 2013 the Court gave the Applicant leave to file such further material that he may rely on at the hearing of his application pursuant to section 476 of the Migration Act 1958, such further material to be filed by 6 August 2013.

   4.On or about 16 July 2013 the Applicant provided me with the document a true copy of which is annexed hereto and marked “Annexure A”.  The Applicant instructed me that he had received the document by email from his mother and that the document is the letter from the police referred to by Margaret Obrist in her email of 24 April 2013 to the Refugee Review Tribunal.

   5.The Applicant instructed me that the document (other than the English portions) is in the Sinhalese language.  I subsequently arranged to have the document translated into English.  Annexed hereto and marked “Annexure B” is a true copy of a translation of the document made on 25 August 2013 by Ruwan Prashantha Samarasinghe, an accredited translator.

   6.The Applicant has instructed me that Mr X, the person referred to in Annexure B, is his father.

   7.I provided copies of Annexure A and an earlier version of the translation in Annexure B to the solicitor for the First Respondent on 10 October 2013.

   8.On 14 October 2013 I was served with a copy of the First Respondent’s Outline of Submissions in this matter.  At paragraphs [12], [14] and [30] to [34] the First Respondent argues that the refusal of the Tribunal to consider the letter from the police was not material to the outcome of its review.

   9.The Applicant seeks to rely on the letter and its translation to rebut the submission referred to in paragraph 8 above.  The Applicant does not seek to rely on the letter and its translation in order to challenge the merits of the Tribunal’s decision (including any factual findings made by the Tribunal).

   10.The Applicant seeks an extension of the order referred to in paragraph 3 above for the filing of further material to the date of filing of this affidavit.

   11.The Applicant’s application pursuant to the Migration Act 1958 is listed for hearing in this Court on 18 October 2013 at 10am and I request that the application in a case be heard at that time.

   12.I know the facts herein deposed to of my own knowledge except where otherwise appears.”

4. Annexed to the Swanson affidavit is the translated text of the message (“the message”) that the applicant had indicated that he wished to put before the Tribunal.  The message was headed “Sri Lanka Police Message Form” and was dated 26 February 2013.  The message stated:

   “From: Officer in charge

   To: Office in charge

   Please inform Mr X of your police division to report to the police station to make an enquiry about a dispute reported on 26/02/1013 (sic) under reference [ref. number omitted.].

   Officer in charge
   Police Station
   [address of police station omitted]”

5. After hearing argument on the Application in a Case, I decided that it would be appropriate that I allow the applicant to rely on the affidavit for the limited purpose referred to in paragraphs 8 and 9 of the Swanson affidavit.

Background

1. The background to this matter is that the applicant, a citizen of Sri Lanka, arrived at Christmas Island on 29 June 2012 as an unauthorised maritime arrival.  On 22 October 2012, the applicant lodged an application for a Protection Visa. 

2. He claimed to fear persecution as a Tamil who was at risk of serious harm from the Sri Lankan Army and the Criminal Investigation Department as his father had been accused of helping and supporting the liberation tigers of Tamil Eelam.  He said that as a result, he feared returning to Sri Lanka as he believed that he would be tortured or killed as he left Sri Lanka illegally and unsuccessfully made a claim for asylum.  The applicant said that as a young Sri Lankan Tamil, he risked harm as a result of being a member of that particular social group.

Delegate’s decision

1. On 1 February 2013, the Delegate of the first respondent refused an application for a visa.  On 18 February 2013, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the Delegate’s decision.

Tribunal’s hearing

1. On 18 March 2013, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.  A hearing was conducted on 17 April 2013. 

2. On 24 April 2013, the applicant’s representative, Margot Obrist, sent the following email to the Tribunal:

   “Dear Sir or Madam,

   Could you please forward this email to Mr Christoph Smolicz

   Thanks and Regards

   Margot Obrist

   Dear Mr Smolicz,

   I’m emailing with regards to above client ([AZADQ]).  After our hearing on the 17/4/13 I encouraged [AZADQ] to call his parents and speak with them openly about his refusal and to get an update on the situation at home.  [AZADQ] subsequently spoke with his mother, who was understandably upset about the news.  However, she also disclosed to [AZADQ] recent developments at home.

   According to his mother, the police returned after [AZADQ]’s departure to look for him several times.  [AZADQ]’s father remains in hiding.  Up to the 26^th February this year, [AZADQ]’s father did return to his home during daytime and only left at night, as [AZADQ] reported during the hearing.  On the 26^th February, [AZADQ]’s parents received a letter from the police asking AZADQ (sic – should be Mr X) to come to the police station.  Since his mother received this letter, his father has not returned home and remains in hiding out of fear of being arrested.

   [AZADQ] asked his mother to email the letter to him.  I am currently in the process of organising translation through his [AZADQ]’s IAAAs provider (sic).  Unfortunately the person responsible for following up this matter is only due back in the office on Monday.  I will follow up with him then.  Please accept our apology for this late information.  According to [AZADQ] these issues were not raised sooner because she did not want to upset him.

   Kind Regards

   Margot Obrist”

3. There is no evidence that the Tribunal responded to the email.

4. On 1 May 2013, the Tribunal affirmed the Delegate’s decision and published its reasons.  On 5 June 2013, the applicant applied for judicial review in this Court. 

5. The Tribunal had this to say about why it proceeded to decide the matter rather than adjourning the matter to give the applicant an opportunity to provide the Tribunal with the message.  At paragraph [43] of its reasons it said:

   “On 24 April 2013, the Tribunal received post hearing submissions from the applicant’s representative claiming that the applicant had contacted his mother after the hearing and was advised his father remained in hiding during the night returning to his home only during the day.  The applicant he (sic) was advised by his mother that on 26 February 2013 his parents received a letter from the police asking that the applicant to report the police station (sic).  The applicant claims his mother did not raise the letter with him sooner because she did not want to upset him.”

6. At paragraph [50] of its reasons, the Tribunal said:

   “The Tribunal has had regard to the agent’s post hearing submissions dated 24 April 2013 and considered whether it should provide further time for the production a (sic) letter from the SLP before it proceed (sic) to making a decision in his matter.  The Tribunal notes that applicant spoke to his mother on 17 April 2013 and the agent has not been provided with a copy of the letter and there is no indication when it is expected to be provided and why it has not been provided to date.  The Tribunal does not accept the applicant’s claim that his mother did not advise him of the existence of the letter earlier because she did not want to upset him.  The Tribunal finds this submission inconsistent with his claim that his parents sent him to Australia to seek refugee status.  In the circumstances and having regard to the Tribunal’s finding that the applicant and/or his father were not persecuted by the CID the Tribunal has proceed (sic) to make a decision without providing more time for the production of the letter.”

Application to this Court

1. The applicant filed an Amended Application on 2 August 2013.  The Amended Application specified the following grounds:

   “1.The second respondent failed to give the applicant a reasonable opportunity to have translated and submit to the second respondent documentary evidence in support of his application, namely a letter from the Sri Lanken police received by the applicant’s parents on 26 February 2013, and thereby denied the applicant procedural fairness.

   2.The second respondent failed to give the applicant a reasonable opportunity to have translated and submit to the second respondent documentary evidence in support of his application, namely a letter from the Sri Lanken police received by the applicant’s parents on 26 February 2013 and thereby acted unreasonably.”

2. The two grounds raised in the Amended Application both raise the question whether the Tribunal gave the applicant a reasonable opportunity to present his case or denied him natural justice:

   (a)Did the Tribunal give the applicant a reasonable opportunity to present his case? and,

   (b)Was the message that the applicant sought to introduce, material that was relevant to the outcome of the application before the Tribunal?

Applicant’s submissions

1. It is submitted on behalf of the applicant that the Tribunal acted unreasonably in declining to delay delivery of its decision to allow the applicant the opportunity to put this additional material before it. It was submitted that in proceeding as it did, the Tribunal did not act in a way that was fair and just as was required by s.422B of the Act.

2. The applicant submits further that in assessing whether the exercise of a statutory discretion is unreasonable in the relevant sense, it is not necessary to conclude that it was irrational or bizarre.  The applicant says that it would be sufficient if a discretion were exercised unreasonably if exercise of its discretion lacked evident and intelligible justification.

3. It was further submitted by the applicant that the following circumstances justified the Tribunal granting an adjournment to enable receipt of the letter:

   1.     The letter was potentially of significance to the outcome of the review.  The agent informed the Tribunal that a letter had been received from the Sri Lanken police station.  The letter thereby had the potential to powerfully corroborate the applicant’s account.

   2.     The agent informed the Tribunal of the existence of the letter promptly upon becoming aware of it and it was implicit from the terms of the agent’s email, that the translation would be obtained and forwarded to the Tribunal shortly.

   3.     There was no relevant prejudice to the Minister, or any third party, that would follow the grant of the adjournment.

   4.     The adjournment was not sought in order to improperly delay the review or to bolster the applicant’s prospects in an illegitimate manner.

   5.     There was no pressing need to proceed with the review without any further delay.

4. Finally it is submitted on behalf of the applicant that the Tribunal’s refusal to accede to what the applicant says was a reasonable request for an adjournment, the Tribunal failed to afford natural justice.

Respondent’s submissions

1. The respondent submits that the Tribunal did not fall into error, jurisdictional or otherwise, in refusing to delay its decision until the further material was received.  The respondent submits that it was open to the Tribunal to determine the review without waiting for further contact from the applicant’s representative.  Nothing that the Tribunal did in the particular circumstances of the case could be said to be unreasonable in the relevant sense or otherwise be characterised as a denial of procedural fairness.

2. The respondent submits that the applicant was given a reasonable opportunity to present his case. The respondent quite rightly points out that the applicant was invited pursuant to s.425 of the Act to appear before the Tribunal to give evidence and present arguments relating to the issues in the case.

3. One of the key issues which the delegate had decided against the applicant concerned the applicant’s credibility.  The respondent submits that it follows that the applicant was taken to be on notice that his credibility was an issue before the Tribunal unless told otherwise. 

4. It was 7 days after the hearing that the applicant’s representative sent an email to the Tribunal foreshadowing for the first time that further material was intended to be provided.  In the circumstances, the Tribunal decided to give its decision on 1 May 2013 in which it affirmed the Delegate’s decision under review. 

5. The respondent submits that the grounds raised in the application for judicial review do not grapple with the real problem that the applicant needs to overcome if he is to be successful.  They submit that the real issue is whether the Tribunal’s adverse credibility finding can be impugned.

6. The respondent submits that the adverse credibility finding was central to the disposition of the case before the Tribunal in that the Tribunal did not accept that the applicant had any profile with the Sri Lanken authorities.  They further submit that finding by the Tribunal influenced its assessment of the applicant’s claims to have spoken with his mother after the hearing, and therefore, whether production of the translated letter would ultimately affect its decision.  The respondent submits that the Tribunal clearly considered that it would not and therefore proceeded to hand down its decision.  The Tribunal had this to say:

   “The Tribunal has had regard to the agent’s post hearing submission dated 24 April 2013 and considered whether it should provide further time for the production of a letter from the Sri Lanken army before it proceeds to make a decision in this matter.  The Tribunal notes that the applicant spoke to his mother on 17 April 2013 and the agent had not been provided with a copy of the letter and there is no indication when it is expected to be provided and why it has not been provided to date.  The Tribunal does not accept the applicant’s claim that his mother did not advise him of the existence of the letter earlier because she did not want to upset him.  The Tribunal finds this submission inconsistent with his claim that his parents sent him to Australia to seek refugee status.  In the circumstances, and having regard to the Tribunal’s finding that the applicant and/or his father were not persecuted by the criminal investigation department, the Tribunal has proceeded to make a decision without providing more time for the production of the letter.”

7. It is submitted by the respondent that once the Tribunal made findings rejecting the applicant’s profile with the Sri Lanken authorities in the manner and the degree to which it did, there was nothing in the circumstances which brought the refusal to delay the review within the realms of unreasonableness.  As Kitto J said in R v Anderson; ex parte Ipec-Eyre Pty Ltd[1]:

   “It is a general principle of law that … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.”

   [1] (1965) 113 CLR 177 at 189.

8. The respondent submits that the detailed process of reasoning to be found in the Tribunal’s decision is an indication that the decision not to delay handing down its decision was made reasonably and not capriciously.

Conclusions

1. For the reasons that follow, I have come to the conclusion that the decision of the second respondent, made on 1 May 2013 should be quashed and that the second respondent should be directed to determine the applicant’s application for a protection visa according to law.  The Tribunal was in the circumstances, unreasonable in not delaying making its decision so as to allow the applicant the opportunity to provide further material.  Its failure to do so amounted to jurisdictional error.

2. There have been many cases that have dealt with the meaning of reasonableness.  In the recent case of Minister for Immigration & Citizenship v Li[2] (“Li’s case”) their Honours Hayne, Kiefel and Bell JJ helpfully examined many of the authorities dealing with reasonableness:

   “[68]    Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury[3] has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it.[4]  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 be 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,[5] 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,[6] 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.[7]

   [69]  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.[8]

   [70]  The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson,[9] a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power[10], may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered[11] 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.””

   [2] [2013] HCA 18.

   [3]     Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230.

   [4]     See Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153.

   [5]     House v The King (1936) 55 CLR 499.

   [6]     Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

   [7]     Wright v Wright (1948) 77 CLR 191 at 2010.

   [8]     Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.

   [9]     Kruse v Johnson [1898] 2 QB 91.

   [10]    See Allars, Introduction to Australian Administrative Law (1990), pp 186-187.

   [11]    Kruse v Johnson [1898] 2 QB 91 at 99-100.

1. A little later in their reasons, their Honours had this to say on the question of the exercise of a discretion to adjourn a matter to allow further evidence to be received:

   “[81]    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.

   [82]  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.

   [83]  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.”

2. The refusal of the Tribunal to wait for the letter to be translated and then provided to the Tribunal was, in my opinion, both unreasonable and a breach of natural justice. Section 420 of the Act requires the Tribunal to provide a review that is fair, just, economical, informal and quick and must act according to substantial justice and the merits of the case. In my view, the Tribunal did not provide a review that was fair or just to the applicant.

3. It is accepted that a failure by the Tribunal to adhere to the standards set out in s.420 of the Act, does not of itself amount to a jurisdictional error[12], however s.420 is relevant to interpreting the other provisions of the Act that relate to the functions of the Tribunal and may therefore be relevant to whether or not the Tribunal has exceeded its powers under other provisions of the Act.

   [12]    Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.

4. Section 422B of the Act provides an exhaustive statement of the natural justice hearing rule. The section states:

   “(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3)In applying this Division, the Tribunal must act in a way that is fair and just.”

5. Section 427(1)(b) of the Act confers a statutory discretion on the Tribunal to adjourn its review of a decision from time to time. That discretion must be applied in accordance with the requirements found in s.422B of the Act that the Tribunal must act in a manner that is fair and just. It must also be an exercise in accordance with a presumption that its exercise will be reasonable as has been mentioned in the Li’s case referred to earlier in these reasons.

6. The mandatory requirement pursuant to s.425(1) of the Act requiring the Tribunal to invite the applicant to appear before it to give evidence and present argument is critical to the exercise of the Tribunal’s “core function” to conduct a review. The Tribunal’s power to adjourn and the requirement of reasonableness that attaches to it must be understood in that context.[13]

   [13]    see Li’s case at para [79].

7. It would appear from the Tribunal’s reasons in paragraphs [43] and [50] that the Tribunal adopted the following reasons in deciding not to grant an adjournment:

   (1)    The applicant’s agent had not been provided with a copy of the letter and there was no indication as when it could be expected to be provided;

   (2)    There was no indication as to why the letter had not been provided;

   (3)    The Tribunal did not accept that the applicant’s mother had not advised him of the letter earlier, because she was concerned not to upset him; and

   (4)    Having concluded already that the applicant was not to be believed that he was persecuted, the Tribunal declined the adjournment.

8. The Tribunal’s statements that “The Agent had not been provided with a copy of the letter”, and “There is no indication when it is to be expected to be provided”, could not properly be drawn from the Agent’s email.  Rather, it was implicit that the Agent had received the letter and that she intended to have it translated and provided to the Tribunal promptly. 

9. As to the suggestion that there was no indication why the letter had not been provided to the Tribunal to date, this statement was factually incorrect.  The email of 24 April 2013 explained all the actions that were taken after the hearing on 17 April 2013.

10. In relation to the Tribunal’s statement that it did not accept that the applicant’s mother had not advised the applicant of the letter earlier because she was concerned not to upset him, it is to be said that although the Tribunal may have harboured doubts about the reason put forward to explain why the letter had not been sent to the applicant earlier, it was not implausible that the applicant’s mother may have wished to shield her son who was quite young from news that the police were looking for him. 

11. The Tribunal stated that, in deciding not to grant an adjournment, it had regard to its finding that the applicant would not be believed about his evidence that he and his father were persecuted.  In doing so, the Tribunal indicated that it had prejudged the outcome of the review.  The Tribunal should have received the further evidence and then made its decision.

12. I agree with the applicant’s submission that the letter was potentially of significance to the outcome of the review.  The Tribunal had been informed that the letter had been received from the Sri Lankan Police Station and should have realised therefore, that the letter potentially could be powerful corroboration of the applicant’s account.

13. It cannot be said that the applicant or his Agent were dilatory in producing the translation of the letter to the Tribunal.

14. There was no relevant prejudice to the Minister or any third party that would be affected by the grant of the adjournment.  Further, it cannot be said that the adjournment was sought in order to improperly delay the review or to bolster the applicant’s prospects in an illegitimate manner.  So far as is apparent from the material, there was no pressing need to proceed with the review without any further delay.  In my view, in refusing to grant an adjournment in order to await the letter, the Tribunal acted unreasonably and its decision should be quashed.

15. Further, the Tribunal was bound to conduct the review in accordance with natural justice.  The Tribunal’s duty to review the Delegate’s decision was a continuing one extending until the decision was affirmed, varied, or set aside.  The Tribunal’s refusal to accede to the applicant’s reasonable request for an adjournment was a denial of natural justice.  As French CJ said in the case of Minister for Immigration and Citizenship v Li at para [18]:

    “Division 5 (of the Migration Act) does not deal with the matter of an application by an applicant for an adjournment in order to provide additional material ... The common law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment in such cases and informs its legal consequences where a person is said to have been deprived by a refusal of a reasonable opportunity for a hearing.”

16. Bearing in mind the analysis of the Tribunal’s flawed reasoning earlier in these reasons, the refusal by the Tribunal to wait for the letter was a breach of the requirement under the Act to afford natural justice in accordance with the provisions of the Act. The Tribunal thereby failed to act in a manner that was fair and just in breach of s.422B(3) of the Act.

17. Alternatively, this error may be characterised as a constructive failure to undertake the core function of the Tribunal, namely, to conduct a review for the purposes of Part VII of the Act.

18. It is well established that a refusal to provide a party with an opportunity to present relevant evidence can constitute a failure to afford natural justice.  Clearly the information which is refused must be information that is material to the issues before the decision-maker.   However, the case of Steed v The State Government Insurance Commission[14] stands for the proposition that it is not necessary in order to establish a breach in natural justice to demonstrate that the provision of the information in question would have been likely to lead the decision-maker to a different result. 

    [14] (1986) 161 CLR 141.

19. The obligation of the Tribunal to provide the applicant with an opportunity to put forward favourable evidence contained in s.425(1) of the Act must be understood in light of the obligations at common law. In the present case, the refusal of the Tribunal to wait for the letter constituted a failure to afford natural justice in accordance with the provisions of the Act. The Tribunal thereby failed to act in a manner that was fair and just in breach of s.422B(3) of the Act. Alternatively, this error may be characterised as a constructive failure to undertake the core function of the Tribunal, namely to conduct a review for the purposes of Part VII of the Act.

20. I make the orders to be found at the beginning of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 3 December 2014