Kalia v Minister for Immigration
[2015] FCCA 667
•23 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KALIA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 667 |
| Catchwords: MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision – English language proficiency – applicant failed to achieve required result in IELTS test – timing of ELICOS course – whether Tribunal had unreasonably refused to adjourn their review – interpretation of “will undertake” – whether Tribunal had erred by taking into account relevant evidence. |
| Legislation: Migration Act 1958 (Cth), ss.29, 31, 65, 348, 349, 353, 474, 476 Migration Regulations 1994 (Cth), regs.1.03, 2.03, cl.572.223 of sch.2, cl.5A404 of sch.5A |
| SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379 Patel v Minister for Immigration & Citizenship [2012] FCA 376 Singh v Minister for Immigration & Citizenship [2010] FMCA 1006 Kaur v Minister for Immigration & Border Protection [2014] FCA 915 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Eshetu (1996) 197 CLR 611 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 Minister for Immigration & Border Protection v Pandey [2014] FCA 640 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | AMIT KALIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 771 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 February 2015 |
| Date of Last Submission: | 23 February 2015 |
| Delivered at: | Sydney and Melbourne (by videolink) |
| Delivered on: | 23 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms J. Lucas, Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 771 of 2014
| AMIT KALIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application under s.476 of the Migration Act 1958 (“Act”) for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 8 April 2014. That decision was to affirm a decision of a delegate of the now Minister for Immigration and Border Protection (“Minister”) to refuse to grant the applicant a Student (Temporary)(Class TU) visa.
The applicant raises three grounds in his application to the Court:
a)I have a genuine intention to study here
b)I have been misguided by the College
c)I haven’t ever changed my study aims; still aim to complete my study and shape my career. and I also have 5 band in [IELTS] with 5 weeks ELICOS.
Leaving aside the last sentence of the third ground, there is no evidence before the Court to support the factual assertions in these grounds. In any event, none of the grounds provides any basis for this Court to interfere with the Tribunal’s decision.
At the hearing, the applicant recounted various ways in which he claims his migration agent had let him down and caused his application for review to fail. At their highest, these complaints rose no higher than an allegation that the agent was negligent. As such, they did not give rise to any arguable case of jurisdictional error: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at 207 [53].
Prior to the hearing, the Court raised with the parties two potential issues in the Tribunal’s decision: first, whether the Tribunal had unreasonably refused to adjourn the review; and secondly, whether it had erred by failing to take into account relevant evidence. Ms Lucas, who appeared for the Minister, addressed those issues at the hearing before me. After considering her submissions, I have decided that neither issue amounted to jurisdictional error.
The application will therefore be dismissed for the reasons that follow.
The statutory scheme
The Act provides for a system of granting visas which allow non-citizens to enter and remain in Australia: s.29. There are classes of visas prescribed for the purposes of the Act and the Migration Regulations 1994 (“Regulations”) may prescribe criteria for each specified class: s.31. After the Minister has considered a valid application for a visa, he must grant the applicant that visa if he is satisfied, amongst other things, that the criteria prescribed for the visa have been satisfied. If he is not so satisfied, he must refuse to grant the visa: s.65.
There are provisions in the Act for review of a decision of the Minister to refuse to grant a visa. Relevantly, pt.5 of the Act provides for review of certain types of decisions (“MRT-reviewable decisions”) by the Tribunal: s.348. On review, the Tribunal has the power to affirm, vary or set aside the decision and to substitute a new decision: s.349. In essence, what it must do is to determine whether it is satisfied that the criteria for the visa are satisfied on the material before it.
The criteria for the grant of a visa of a particular class are set out in sch.2 to the Regulations: reg.2.03. The criteria critical to these proceedings are set out in some detail later in these reasons. For present purposes it is sufficient to note that they were contained in cl.572.223 of sch.2 to the Regulations.
Before turning to the facts it is necessary to note the limited jurisdiction of this Court in relation to decisions of the Tribunal. This Court has, in relation to migration decisions, essentially the same jurisdiction as the High Court has under para.75(v) of the Constitution: s.476. However, in light of s.474 of the Act, that jurisdiction (at least insofar as it concerns the constitutional writs of prohibition and mandamus) is limited to decisions that are affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 508 [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Although it can be difficult to identify what errors are jurisdictional, it suffices to say that disagreement with a finding of fact made by the Tribunal, or even with its ultimate conclusion, does not support a finding that there has been jurisdictional error: unlike the Tribunal, the Court’s function is not to determine for itself whether it is satisfied that the applicant has satisfied the criteria for the grant of a visa.
Background
The applicant is a citizen of India. On 24 July 2013 he applied for a Student (Temporary) (Class TU) visa. At that time, there were eight subclasses in that class of visa. The subclass relevant to the applicant was subclass 572.
One of the criteria for that subclass was cl.572.223 in sch.2 to the Regulations. That clause provided relevantly:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
…
(b) the applicant meets the requirements of subclause (2).
(2)An applicant meets the requirements of this subclause if:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
…
The term “assessment level” means the level of assessment specified by the Minister for a kind of passport: reg.1.03 of the Regulations. At the time of the application, the relevant assessment level for a person holding an Indian passport (as the applicant did) was level 4: IMMI 12/005. The requirements for that level were contained in div.2 of pt.4 of sch.5A to the Regulations. Amongst these was the requirement for English language proficiency contained in cl.5A404. That clause could be satisfied by a number of alternatives. The relevant parts were:
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i)will not undertake an ELICOS before commencing his or her principal course; and
(ii)achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b)the applicant:
(i)will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii)achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
…
(d)the applicant had, less than 2 years before the date of the application:
…
(iii)as the holder of a student visa—successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
…
ELICOS means an English Language Intensive Course for Overseas Students that is a registered course: reg.1.03. IELTS test means the International English Language Testing System test.
The Full Court of the Federal Court described the scheme of this criterion in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379 at 381 [7] as follows:
Thus, the scheme of Item 5A404 entails that by the time of the decision, an applicant may or may not have achieved an appropriate level of proficiency in English, as evidenced by the result of an IELTS test. If the applicant has not achieved the relevant level of proficiency, he or she will undertake an ELICOS. However, if the applicant has achieved the relevant level of proficiency, he or she will not need to undertake further tuition, such as an ELICOS. There are other possibilities depending upon the level of proficiency that has been achieved by the applicant.
The day after the applicant lodged his visa application, the Department of Immigration wrote to him to ask for further information. Amongst the information sought was evidence of the applicant’s English language ability. In response to this request, the applicant’s migration agent, Dr Sharma, sent the Department copies of the results of the IELTS test undertaken by the applicant on 21 April 2012, an ELICOS certificate relating to study undertaken over 20 weeks from 19 November 2012 to 19 April 2013, and certificates detailing his school results in years 10 and 12 from the Punjab in India. The IELTS results showed that the applicant had achieved an Overall Band Score (“OBS”) of 4.5.
On 4 November 2013, in further response to the Department’s request, Dr Sharma sent the Department a letter from the applicant’s education provider indicating that the applicant had commenced his studies in Hospitality on 22 April 2013, proposed to complete them on 19 October 2014 and that he had completed 50% of the course.
On 7 November 2013 a delegate of the Minister decided to refuse to grant the applicant a visa. The delegate found that the applicant had not satisfied the English language proficiency requirements in cls.572.223 and 5A404. First, he had not obtained the 5.0 OBS along with 20 weeks of ELICOS study required by cl.5A404 and, secondly, he had not completed 50% of his course because he had not yet commenced one of the courses in which he was enrolled.
The applicant applied to the Tribunal for review of the delegate’s decision.
On 17 December 2013 the Tribunal invited the applicant to attend a hearing to be held on 6 February 2014. That invitation included a request for the provision of further information including evidence that the applicant met the English language proficiency requirements.
On 4 February 2014 the applicant’s new migration agent, Mr Qazi, wrote to the Tribunal to request a postponement of the hearing because of the applicant’s medical condition. The Tribunal acceded to that request and reiterated its request for further information. The hearing took place on 27 February 2014.
At the hearing, the applicant produced an IELTS test report showing an OBS of 5.0 for a test taken on 1 February 2014. The Tribunal explained to the applicant that an OBS of 5.0 was insufficient because he was not undertaking an ELICOS before commencing his principal course and that he would need to achieve an OBS of 5.5. The applicant asked for time to undertake another IELTS test and the Tribunal granted that extension, saying that it would wait for two weeks after the test of 31 March 2014.
The applicant undertook an IELTS test on 15 March 2014 and attained an OBS of 5.0. Mr Qazi sent the results of this test to the Tribunal by email on 7 April 2014. In the email, he also wrote:
According to 572.234(2)(b), visa applicant is permitted to undertake ELICOS no more than 40 week (Assessment level 4 applicant). The applicant Mr Amit Kalia has so far attempted only 20 week ELICOS course and he can attempt another 20 week ELICOS course and can fulfil the requirement of this regulation.
However, the applicant has not tried to get himself to enrol in ELICOS course, because he was not sure that if he will be able to satisfy the relevant requirement of the regulation. If according to the Member’s view he is able to satisfy the requirement by enrolling in ELICOS course, than [sic] Please give applicant at least a week duration time in order to get himself enrol in ELICOS course of required period.
The email then referred to the Department’s policy in relation to ELICOS and continued:
… From the above, it is clear that policy allow the applicant to even start the ELICOS course before visa decision. The applicant’s circumstances does not exactly matches with the policy guideline, however, decision may be made in his favour if ELICOS course completed in past is taken into consideration.
Finally, the applicant is due to complete his Certificate III course on 20-04-14 and will start his Certificate IV from 21-04-14. He has requested that if he has been granted another 2 month than he will complete substantial part of Certificate IV and thus fulfil the relevant requirement of English proficiency.
…
The Tribunal treated these parts of the email as two conditional requests to delay the making of its decisions and rejected both requests. Instead, it made a decision on 8 April 2014 to affirm the decision of the delegate to refuse to grant the visa.
In its statement of reasons for decision, the Tribunal explained its reasons for proceeding to make its decision in the following passages:
[19]The applicant makes a conditional request: that he will enrol in an ELICOS if the Tribunal indicates that it might assist him to satisfy the requirements of the Regulations. This betrays, to my mind, a misunderstanding of the review process. The review is not a negotiation between an applicant and the Tribunal. It is for the applicant to make arguments and present his case. I am of the view he has been given ample opportunity to do so. He has been on notice, since the primary refusal decision on 7 November 2013, that he must satisfy the Schedule 5A English language proficiency requirement. On the evidence before me, the applicant is not enrolled in an ELICOS. As a result the relevant provision he must satisfy, if he wishes to rely on an IELTS OBS for English language proficiency, is cl. 5A404(a). He does not meet this as he only has an OBS of 5.0, not 5.5.
[20]The applicant makes a second conditional request, namely that I defer making my decision for two months in the hope that he can satisfy cl. 5A(d)(iii) [sic: 5A404(d)(iii)]:
… by completing a substantial part of the Certificate IV course which commences on 21 April 2014.
[21]I will not defer making my decision for two months in the hope that the applicant can satisfy the English language proficient [sic] requirement by some other means. This is principally as the request assumes that the applicant will successfully complete a substantial part of a Certificate IV which is by no means certain. Further, such a request runs contrary to the Tribunal’s way of operating prescribed in s 353(1) of the Act …
The Tribunal concluded that the applicant did not satisfy the English language requirement in sch.5A and so did not satisfy the criterion in cl.572.223(2)(a). For that reason, it was not satisfied that the applicant satisfied the criteria for the grant of the visa and affirmed the decision of the delegate to refuse to grant the visa.
Consideration
Ground 1
The applicant was unrepresented in these proceedings. His first ground in the application was that he had a genuine intention to study in Australia. This ground appears to be aimed at establishing that the applicant does in fact satisfy the criterion in cl.572.223(1) which is set out at [12] above. However, that is not an issue that can go to the exercise of this Court’s jurisdiction under s.476 of the Act. First, as appears on the face of the criterion, the question raised by cl.572.223(1) is whether the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student. That, combined with the operation of s.65 of the Act as explained above, means that the only issue is whether the Minister (and, on review, the Tribunal) was satisfied of that matter in a manner that accorded with the law and not whether the court is satisfied of it. Put another way, it is not for the Court to determine the merits of the application for review.
Secondly, and in any event, the requirement of being a genuine applicant for entry and stay as a student is qualified so that the applicant must satisfy cl.572.223(2) in order to meet cl.572.223(1). That was the approach taken by the Tribunal and there was no error in that approach.
For those reasons, the first ground must fail.
Ground 2
The second ground is that the applicant was misguided by his College. As already noted, there is no evidence to support that assertion and the ground must fail for that reason.
Ground 3
The third ground is in two parts. The first is that the applicant has not changed his study aim which is still to complete his study and shape his career. This part of the ground suffers from the same flaws as the first ground, namely, that it appears to be aimed at establishing that the applicant does satisfy the criteria for the visa. For the reasons already given, this part of the ground must also fail.
The second part of the ground is that the applicant has “5 band in ielts with 5 weeks ELICOS”. The evidence shows that the applicant actually attended an ELICOS for 20 weeks between 19 November 2012 and 19 April 2013; however, neither that, nor the OBS of 5.0 can assist the applicant in this Court. First, as noted above, the scheme of cl.5A404 is that the lower OBS of 5.0 will be sufficient where the applicant gives evidence that he will undertake an ELICOS before commencing his principal course. In light of that, it does not help the applicant to give evidence that he has already undertaken such a course: Patel v Minister for Immigration & Citizenship [2012] FCA 376 at [11]; Singh v Minister for Immigration & Citizenship [2010] FMCA 1006 at [15]-[22]. Secondly, as explained in respect of the first ground, it is not for the Court to determine whether the applicant satisfies the criteria for the grant of the visa. In this case, the Tribunal appears to have accepted that the applicant had undertaken an ELICOS for 20 weeks. However, for the reasons just given, it was correct to proceed on the basis that that fact did not assist the applicant in meeting the requirement of cl.5A404.
For those reasons, the grounds in the application must fail.
Other issues
There remain two issues for resolution both of which arise out of the email dated 7 April 2014 and the way in which the Tribunal dealt with that email. The first issue is whether the Tribunal’s decision to proceed to make a decision rather than adjourning the review was legally unreasonable. The second is whether Mr Qazi’s email of 7 April 2014 could have constituted evidence that the applicant “will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course” within the meaning of sub-cl.5A404(b)(i) and, if so, whether the Tribunal fall into jurisdictional error by not making its decision on that basis?
It is convenient to deal with the second of these issues first.
Until the email of 7 April 2014 the only real issue for the Tribunal was whether the applicant was able to satisfy cls.5A404(a) or 5A404(b) which are set out at [13] above. As the applicant had only obtained an OBS of 5.0 in an IELTS test, he could not satisfy 5A404(a) (which required a score of 5.5) and could only satisfy the latter of these if there was evidence that he “will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course.”
The issue is whether the email of 7 April 2014 constituted such evidence. The Minister submitted that it could not. First, as the email only constituted a conditional request, there was nothing to suggest that the applicant would undertake an ELICOS course. Secondly, on its proper construction, “undertake” means to commence and complete the relevant course. On that construction, it was impossible for the applicant to “undertake” a course for 20 weeks before commencing his principal course. Thirdly, because the criterion is couched in the future tense, the applicant could not rely on an ELICOS course that he had previously undertaken.
The email from the applicant’s agent was clearly couched in provisional terms. Rather than saying that the applicant proposed to undertake a course, or that he would take a course, the email said: “If according to the Member’s view he is able to satisfy the requirement by enrolling in ELICOS course”. On that basis, the email did not constitute evidence that the applicant “will undertake” the requisite course.
That conclusion is sufficient to dispose of this issue. However, for the sake of completeness, I will briefly state my views on the second and third points of the Minister’s arguments.
The word “undertake” normally means to take on or to attempt a task. It does not ordinarily entail completion of that task. However, the context of the word in cl.5A404(b) does suggest that that is what is required. First, as noted above, cl.5A404(b) presents an alternative to the higher IELTS score required by cl. 5A404(a). Bearing in mind that these clauses form part of the requirement that the applicant be a genuine student (cl.572.223(1)) and go more directly to the issue of language ability, the criterion must be understood to ensure that the visa applicant will be able to actually engage in a proposed course of study. This context and purpose supports the construction that the applicant will finish the ELICOS course before the proposed course of study.
Secondly, the requirement that the course be of a particular, but limited duration (“up to 20 weeks”) suggests that the criterion envisages both the beginning and the end of the course prior to the commencement of the proposed course.
Thirdly, the course is to be undertaken before the proposed course of study is commenced. This adds strength to the first two points.
It may be open to construe the clause so that it only requires evidence that an ELICOS course was commenced prior to the proposed course of study, but in my view, that construction would not advance the purpose of the clause as well as the construction suggested by the Minister. A person is more likely to be a genuine student if they can understand the language of instruction at the beginning of a course rather than some time into that course. For that reason, on its proper construction, cl.5A404(b) requires the applicant to give evidence that he will commence and complete an ELICOS of no more than 20 weeks duration before commencing his or her principal course.
Absent any evidence of the duration of ELICOS courses in general, it is not possible to say whether the applicant could have completed a course between 7 April 2014 (the date of the email) and 21 April 2014 (the commencement of his principal course). It seems unlikely. In any event, that is not the question. The question is whether the applicant gave evidence that he “will undertake” an ELICOS course before commencing his principal course. The email did not say that. Taken at its highest, the email indicated that the applicant would undertake a 20 week ELICOS course. He could not have done that within a period of two weeks.
The third point made by the Minister is supported by the authorities referred to in [33] above and should be accepted.
For each of those reasons, the email of 7 April 2014 could not have constituted evidence within the meaning of cl.5A404(b). Thus, the Tribunal made no error by not treating it as such.
The issue of legal unreasonableness is not so straightforward. The concern arises from the way in which the Tribunal dealt with the applicant’s request that it delay making a decision so that the applicant might have the opportunity to commence and complete a substantial part of a course within the meaning of cl.5A404(d)(iii). At [21] of its reasons, the Tribunal explained that it did not accede to that request for two reasons: first, it was not certain that the applicant would in fact complete a substantial part of the course; and second, that the request was contrary to the Tribunal’s way of operating prescribed in s.353(1) of the Act. That section provides:
(1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case.
The question was whether the Tribunal misunderstood the exhortation contained in s.353 and so erred in the exercise of its discretion to adjourn the review.
The Tribunal has the power under s.363 of the Act to adjourn the review from time to time, a power that can be exercised more than once: Kaur v Minister for Immigration & Border Protection [2014] FCA 915 at [81]. It is clear that the applicant requested the Tribunal to exercise that power in the email of 7 April 2014. It is well-established that the power must be exercised reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, and [88] per Gageler J. The means by which unreasonableness is to be identified are not without complexity. What is clear is that “unreasonableness” is not simply a title given to an outcome with which a reviewing court disagrees, even strongly disagrees: Minister for Immigration and Ethnic Affairs v Eshetu (1996) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J.
In Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 the Full Court explained the relevant principles as follows:
[44]In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225 ; [2013] HCA 18 at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225 ; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].
Justice Wigney further encapsulated the relevant principles in Minister for Immigration & Border Protection v Pandey [2014] FCA 640 at [41]:
The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised 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: Li at [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: Li at [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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Before applying those principles to the facts of this case, it is worth noting three matters. First, as Gageler J recalled in Li at [113], a conclusion of unreasonableness is a rare one. Secondly, although the Court must focus on the reasons given by the decision-maker for proceeding in a particular way (where reasons are given), that does not mean that the factual circumstances of the case must be set to one side. Rather, as explained in Singh and Kaur, the determination of unreasonableness requires a close analysis of the facts. It is only in the context of the facts that the reasons can be properly understood. What must be avoided is speculation on other possible ways in which the decision-maker could have arrived at the same decision. Thirdly, part of the context required to understand the reasons given by a decision-maker is the identity of that decision-maker, the legislative framework in which the decision is made and, in particular, any obligation to give reasons and the extent of that obligation if any. In the current context, this requires that the reasons of the Tribunal be approached in the manner cautioned by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In my opinion, it cannot be said that the Tribunal’s decision not to adjourn the review was legally unreasonable. The reasons given by the Tribunal for its decision provide an intelligible justification for it.
The first reason given was that the request for an adjournment was based on an assumption that the applicant would successfully complete a substantial part of a Certificate IV. The Tribunal was of the view that that assumption was by no means certain. While other decision makers may not take that view, it was by no means unjustifiable in the circumstances. It will be recalled that, at the stage of the request, the applicant had not yet commenced the Certificate IV course. Further, while the adjournment requested was for a period of two months, namely, until early June 2014, the course was a six month course.
The second reason given by the Tribunal for refusing to adjourn the review was that the request ran contrary to the Tribunal’s way of operating prescribed in s.353(1) of the Act. That provision is set out at [48] above.
On one view, the Tribunal appeared to place emphasis on the aspect of s.353(1) that refers to reviews that are “economical, informal and quick” and ignored the part that refers to a “fair, just” review. It was in light of that possibility that I raised the issue with the parties. However, the better view is that the Tribunal did not misunderstand the import of s.353(1). There are two reasons for this conclusion. First the fact that Tribunal allowed an earlier adjournment leads me to infer that, in this instance, the Tribunal was cognisant of the requirement to proceed in a manner that was just and fair. Secondly, the first reason given by the Tribunal, namely, that the assumption behind the request was not well-founded, suggests that the Tribunal had in mind the question of fairness.
Finally, this was not a case where other circumstances of the review suggest that the decision to adjourn the review had the character of an arbitrary or capricious decision. There was, for example, no delay by the Tribunal in the conduct of the review that would be inconsistent with its concern that the review be conducted in accordance with s.353(1) of the Act.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application will be dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 24 March 2015
CORRECTIONS
Cover sheet and Orders: Page 2, delete “$6,646” and insert “$6,825”.
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