Minister for Immigration and Citizenship v Li and Anor

[2013] HCATrans 6

[2013] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B68 of 2012

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

XIUJUAN LI

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 FEBRUARY 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR G.R. KENNETT, SC, and MS A.L. WHEATLEY, for the appellant.  (instructed by Clayton Utz Lawyers)

MR L. BOCCABELLA:   May it please the Court, I appear for the respondent, with my learned friend, MR W.J. MARKWELL, for the first respondent.  (instructed by AJ Torbey & Associates)

FRENCH CJ:   Thank you, and there is a submitting appearance for the second respondent.  Yes, Mr Solicitor.

MR GLEESON:   Your Honours, the core issue might be framed this way.  It will have some aspects of statutory construction to it, but it might be framed this way.  Where the Tribunal has conducted a review of a decision of the delegate and has given the applicant a full opportunity to put what the applicant wishes to establish, that she satisfies the criteria for a visa, is the Tribunal bound to defer bringing that review to a conclusion for a particular purpose, a purpose of permitting the applicant to seek to bring about a change in circumstances, such that at a future date the criteria are satisfied?

FRENCH CJ:   Did the Tribunal go much further in its reasoning in relation to the request for deferral than to say enough is enough?

MR GLEESON:   That is how I first read it, your Honour.  It is on page 16, of course, paragraph 35, and it is very short and enough is enough is perhaps the key message of it.  Could I indicate there may be a fraction more to it than that?  It is a compressed paragraph.  The first proposition is “there is no legislative restriction” per se “upon acquiring a second skills assessment” but “there is no current [positive] skills assessment . . . other than” the earlier one infected by false information.  So that is a proposition, an accurate one, namely, whatever you are doing to try and bring a new one about you have not yet got it. 

The next sentence is I have had regard to what was at that stage the negative second assessment and I have had regard to your submission that it is “affected by errors and is the subject of review”.  So it is an assertion that I have heard your argument that you are trying to bring about a change in circumstances.  Then we have got the enough is enough sentence and:

enough opportunities to present her case and is not prepared to delay any further –

Then, your Honours, there is the final rider which is not completely clear in what it means but could I proffer a sensible meaning for it:

in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority’s assessment.

What I would suggest that embraces, if your Honours would go to the criterion which is attached to our submissions, 880.230 has, of course, two steps; the first is the positive assessment of skills from the relevant authority and secondly, no evidence available that it was based on “false or misleading” information “in a material particular”.

Had there been the adjournment to see whether a positive second assessment was produced there would still have been the second aspect to consider under this criterion.  Was that second assessment infected by false information in a material particular as was the first?  Now, it may be the delegate was saying, what you are really asking me to do is not simply wait to see whether you can produce a piece of paper but that piece of paper would require the Tribunal to then conduct the full exercise under the criterion which would give rise to this second stage and the enough is enough proposition is I am not prepared to extend the issues into that unknown arena.

KIEFEL J:   Do you mean that it would be tantamount to starting the procedures again whereby the Department officers visit the employers and check, as they did in relation to the first assessment?

MR GLEESON:   Yes, your Honour, and with the added difficulty that, with the first assessment, the Department’s officers carry out those inquiries and produce the information which the delegate can decide upon, and then the Tribunal looks at the quality of that material plus anything new on that subject.  If this process were to be contemplated, it seems to all be done at the Tribunal level where presumably the Tribunal can try to engage the Department to go and make the inquiries, but it seems to be not an overstatement to say that it is really converting a review into a rolling series of fresh applications.

KIEFEL J:   Yes, I see.  The Tribunal is seized of it, and would make what inquiries it thought necessary, but it would do that based upon the information and the assessment that came before it, would it not?

MR GLEESON:   In this hypothetical second stage, yes.

KIEFEL J:   Yes.

MR GLEESON:   What it would have to receive, which of course it never could receive in principle here, was not only the second assessment if it were positive or negative all the information upon which it was based, and then conduct such inquiries to see whether that was materially false information.

KIEFEL J:   The Tribunal’s letter asking for further comment was, I think, after the hearing of 18 December 2009 and was sent on 21 December.

MR GLEESON:   Yes, your Honour.

KIEFEL J:   And, the agent’s response, I could not quite pick up the date of that.

MR GLEESON:   The letter from the Tribunal is at page 211 and the response is at page 214.

KIEFEL J:   The Tribunal sets that out at length in its decision.

MR GLEESON:   Yes, it sets it out accurately, and 214 to 218 is the adviser’s submission and ‑ ‑ ‑

KIEFEL J:   That is 18 January 2010?

MR GLEESON:   Yes.

KIEFEL J:   And the Tribunal proceeds to make its decision on 25 January?

MR GLEESON:   Yes.

KIEFEL J:   Seven days later?

MR GLEESON:   Yes.

KIEFEL J:   In the face of a confident assertion by the advocate pointing out two errors, the first of which might be suggestive of error in the assessing authority.  I will just turn it up.  I am reading from the Tribunal’s decision at page 99 at about line 30.  It was a reference from one of the employers which they asserted was not taken into account and which would have given the hours.

MR GLEESON:   Yes.  Your Honours, the point we would put is at the earlier anterior legal stage, and I will come to the statute in a moment.  Were the issues in relation to this decision, which were the subject of the review, properly identified by the Tribunal as those which emerged from the delegate’s decision, plus anything which was capable of being put in the review that I have satisfied the criteria?  This application for an adjournment really was based on the premise, it is your duty, Tribunal, to enable me to compel an expansion of the actual or potential issues into a territory which may or may not, depending on a change in circumstances, give me a state of satisfaction.  The statutory question we would raise is, is there a duty on the Tribunal either to simply accede to that request or is there a lesser duty to even consider the request?  Your Honour’s questions really go to the consideration question, assuming there is a duty to consider, is the manner in which the consideration occurred insufficient and perfunctory in the circumstances perhaps?

KIEFEL J:   But put another way from the perspective of the applicant in the Tribunal the applicant is saying to the Tribunal through the agent’s letter, “I am confident that I will have some evidence, namely the TRA assessment, on review in my favour.  I will be able to satisfy the criterion and I am asking for time.”  It is time to put evidence forward to meet the criterion.  That is what they are asking for.  I know that you can turn it into a hope and we can discuss how one might otherwise characterise it, but that is essentially what they are asking.

MR GLEESON:   They are asking for time in one sense, in a simple sense, to ask to put on further evidence.

KIEFEL J:   I accept that they already have evidence in relation to the matter, but this is further evidence.

MR GLEESON:   What is the nature of that further evidence?  That is where this appeal really seems to turn?  It is not a case of someone saying, “My case is that I satisfy that criterion today and what I need is time to produce the evidence to show you I satisfy it today.  For example, I have been told the assessment has been given and a copy is in the mail.”  It is a person saying, “I have a confident hope” as your Honour put it to me, “that at a future date” – unidentified ‑ “I will satisfy it, but whether I will satisfy it will, of course, depend on the two elements I have looked at.”  The first is what the assessing body does and the second is the quality of the information upon which that is based.

FRENCH CJ:   That is to say it is not a matter of further evidence for the purposes of the review; it is a matter of “I will meet the criterion at some point, which I do not presently meet”.

MR GLEESON:   Yes, and so as we would ‑ ‑ ‑

GAGELER J:   If you look at the structure of the criteria set out in, I think it is subclass 880 of Schedule 2 to the Migration Regulations there are criteria to be satisfied at the time of application and there are criteria to be satisfied at the time of decision.  One of the criteria to be satisfied at the time of application is that there has been an application for an assessment ‑ that is 880.211 ‑ and then 880.230, to which you have already referred, is one of the criteria to be satisfied at the time of decision. 

So the very structure of the subclass contemplates that the application for a visa may well occur after an application for an assessment, but before the assessment is in existence.  In those circumstances, would it not be unreasonable to proceed immediately to a determination of the application upon the making of the application, without allowing the assessment to come into existence?

MR GLEESON:   If your Honour’s question were understood in terms of the delegate, the answer is yes. 

GAGELER J:   All right, so your case turns on there being a difference between the Tribunal’s function and the delegate’s function?

MR GLEESON:   Yes, and it turns on the nature of the review function and its scope.  Would it be convenient, your Honours – your Honours will see from our outline the factual matters are really laid out in paragraphs 2 and 3.  Your Honours are familiar with those.  Could I really come to what I think has come out of the questions, which is what are the provisions in the statute which we would submit give the review the more confined nature that I have put in summary and which is thrown up by your Honour’s question?  This is really an expansion of paragraph 4 of our outline.

Your Honours, these are the provision for statute, we would submit, that bear on the nature of the review.  The first is in section 248 itself.  The function, of course, is to review the decision and that conveys that it is not simply a rehearing of an application in the broadest and most unlimited sense.  The decision has an important central role in the review function that is occurring.  Your Honours in SZBEL v The Minister 228 CLR 152 gave some discussion to the concept of the issues which arise in relation to a review between paragraphs 33 and 40.

FRENCH CJ:   Does this lead to the proposition that provision of an opportunity to create a set of circumstances which satisfy a necessary criterion is outside the scope of review?

MR GLEESON:   Yes, because what it does is really write the decision out of the process and really make it a question of a simple open‑ended rehearing of an original application in which circumstance your Honour Justice Gageler’s point would have unanswerable force.  If you are simply doing what the delegate is doing in any and every sense of the word you would say you must have some time to turn an application into a positive or negative decision.  So the proposition arising from section 348 is that because it is a review of a decision that does not permit the sort of opportunity that was sought here.  In that case, your Honours, that are caught between paragraphs 33 and 40 ‑ ‑ ‑

KIEFEL J:   But the Tribunal has the power to receive further evidence, it is by way of rehearing.

MR GLEESON:   In relation – I do not want to fall completely into circularity but in relation to the issues which properly arise on the review of a decision and so I am seeking to come back to whether those issues arising in relation to the review of the decision are ones which are capable of perpetual expansion at the request of the applicant.

GAGELER J:   Are you saying it is not possible for an applicant on a review before the Tribunal to turn up with a new assessment?

MR GLEESON:   No, I have not put that proposition, your Honour, but I am putting that having turned up before the Tribunal with every opportunity to put the material you wish to put in relation to the decision if, when that occurs, the position is as per the present case, the only assessment you can rely upon is one infected by falsity, you have had the full opportunity of review contemplated by these provisions.

GAGELER J:   The provisions contemplate ‑ you will no doubt come to this, but the provisions contemplate in section 363(1)(d) that the Tribunal conducting the review of the kind that you are explaining can adjourn to review from time to time.  Is not the question simply one of whether that power is conditioned by a requirement of reasonableness and whether that requirement was met in the circumstances of this case?

MR GLEESON:   Not simply, your Honour.  There is an anterior question where that power is coupled with a duty, a duty to consider a request of the present character, and just as the Court in relation to the equivalent section 363(1)(d) in deciding whether there was a duty to consider whether to conduct a medical examination if requested – this was in the case referred to in paragraph 10 of our note, SZGUR 241 CLR 594 – held that there was no duty to consider a request of that character. My submission is that there is no duty attached to section 363(1)(b) requiring the Tribunal to embark upon this task of contemplating what are the person’s prospects at a future date of satisfying a criterion they cannot currently satisfy.

KIEFEL J:   But it does not need to go that far, does it?  It needs to consider whether there is a bona fide request on evidence showing that there may be some further evidence available to satisfy the criterion.  That would be the normal in which you assess an adjournment.

MR GLEESON:   And in the normal way one would be doing it against the context of – in an adversarial proceedings the issues which have been joined in the pleadings, and I do not wish to be drawn into a false parallel there, but if someone turned up and said, this is my case in an adversarial matter, there is an extra issue which I am not pleading, I cannot plead at the moment, I am hopeful I might be able to do it later on, that would raise questions as to how the Court would approach that as an adjournment application.  But in the present context it is central to the argument I am putting that the nature of the review focuses on these issues arising in relation to the review and they do not include future issues.

FRENCH CJ:   Is it a corollary of that that the Tribunal is precluded from consideration of a later assessment which would give rise to satisfaction of the criterion?

MR GLEESON:   When your Honour says, a later assessment, one arising after ‑ ‑ ‑

FRENCH CJ:   Which did not exist at the time that the review process was engaged.

MR GLEESON:   Your Honours, there is a ‑ ‑ ‑

FRENCH CJ:   You are saying it is beyond the scope of review, you answered affirmatively to that proposition.

MR GLEESON:   Yes.  There is a tension between the proposition I have put and the cases to which your Honour is referring which indicate that it is part of the duty of the Tribunal to make its decision on the material properly before it at the date of its decision and therefore material which has come into existence post the delegate not only can be considered but should be considered if it be relevant. 

In a difficult sort of case where the Tribunal has fully conducted its review, as we would say occurred here, and the reasons are being composed, and before the decision is made the adviser rings up and says, I have now got the assessment, I now do satisfy that condition or at least the first limb of it, the authority of those cases would be that the Tribunal would be bound to consider that material as long as it has arrived before the decision is given.

KIEFEL J:   Well, there is no – I think you accepted what the Tribunal member had said at paragraph 35 that there is no legislative restriction upon acquiring and receiving a second skills assessment and it is really up to the Tribunal as to how long they permit for that course.  I think you have agreed with that.  You have been taken to section 363.  I think in your submissions you also identify that if there is to be some statutory obligation it might arise in section 360(1) where the Tribunal is to:

invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

That is the area really for discourse, putting aside for the moment any general procedural fairness principles which might still run with these sections.

MR GLEESON:   Your Honour, we would accept, and it may be tolerably clear from our submissions, that although much of the focus of the Full Court is on sections 353 and 357A the critical question ‑ ‑ ‑

KIEFEL J:   It is section 360 that might ‑ ‑ ‑

MR GLEESON:   ‑ ‑ ‑ is really section 360, perhaps section 363.

KIEFEL J:   Yes.

MR GLEESON:   And what does it mean to identify the issues arising in relation to the decision under review?  I had taken the Court to SZBEL as the most detailed discussion we could find of that concept, it is between paragraphs 33 and 40 of that decision, and the Court there observed at paragraph 34 that:

Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.

Now, that indicates there is a more specific focus when one is dealing with the review.  Then the statutory language is referred to as being more particular:

The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision‑maker . . . but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.

So, although the particular decision and its reasons does not necessarily exhaust the scope of what may be the subject of the review, it is clearly an important and central part of the focus.  In paragraph 35, the Court indicated that:

The Tribunal is not confined to. . . the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.

Then the case went off on a different fact situation where the Tribunal thought something was an issue but did not adequately bring that to the attention of the applicant and it did not clearly enough arise from the terms of the decision.

KIEFEL J:   That case was, of course, concerned with a protection visa where there may be a multiplicity of issues arising.  This is rather simpler, is it not?  The issue was, and remained, whether or not the criteria for the visa were satisfied – whether there was evidence of the facts required for that.

MR GLEESON:   Yes, although, your Honour, the decision in this case may have a parallel and a consequence if one considers, in the context of a protection visa, whether the applicant has established a well‑founded fear of persecution on a particular ground.  That well‑founded fear must exist, certainly by the time of the decision.  We would accept that in a case where a person says, my well‑founded fear is based on the fact that my family members were murdered last week in a particular country, I need time for evidence to prove my fear, that would clearly be within the power to adjourn.  But in a case where a person said, I cannot presently establish a well‑founded fear but I may be able to if circumstances change – I know it is difficult drawing bright lines ‑ but we would submit that that has really taken one into the territory of a person who cannot establish the criterion at the date on which the decision would otherwise come to its conclusion.

HAYNE J:   The analogy is one which may not be perfect and therefore may mislead, that is, the analogy with the protection visa that you have just given may mislead.  Do you accept that 880.230 can be met by an assessment that is made in response to an application that is not the application that is on foot at the time of application?

MR GLEESON:   Could your Honour allow me to get instructions on that?  Your Honour, forgive me for the pause.  Can I answer that question in two propositions?  The first is that that point has never been taken by the Minister in this case.  The second is that when I reviewed the section it seemed to me that that was an available and rational way of understanding the relationship between the two groups of criteria at the date of the application and criteria at the date of the decision.

HAYNE J:   Sorry, what is the rational and available view that the assessment is made in response to an application that is not the application referred to in 880.211?

MR GLEESON:   That the idea in 880.210 is that you must have made the application described in 211, which is particular in a sense, it is assessment of your skills for the nominated application, the one you nominate as your skilled occupation, by a body which meets the description of being a relevant assessing authority, and the reason for allowing the extra time, coming back to Justice Gageler’s question, is that that application may be one which may need time to reach its conclusion, and so the reference to “A relevant assessing authority” in 230 is the completion of the process of that application.

HAYNE J:   No doubt that will be the ordinary case.

MR GLEESON:   Yes.

HAYNE J:   Of course it will.  But it seems to me that a necessary question to be answered in construing the criteria, before you get to the questions of adjournment, power to adjourn and the like, is whether the assessment on which you rely at the time of grant is one that can be made in response to a request for assessment made after the application for the visa.

MR GLEESON:   Yes.

HAYNE J:   If it cannot be, that is, if you cannot rely on an assessment made in response to a subsequent application the question debated in the Tribunal and debated in the Full Court seems to fall away, does it not?

MR GLEESON:   It would.

HAYNE J:   It seemed to me that the premise for the argument, as joined in the written submissions and as joined in the Full Court, was yes, of course you can have an assessment made in response to a subsequent application.  I am surprised at the fluttering in the dovecotes that my question has provoked, Mr Solicitor, but there we are.

MR GLEESON:   I can only look at your Honours.  It would not be safe to turn around.  Your Honours, could I proceed in this fashion?  I will attempt to obtain a formal instruction within the next half hour as to whether that proposition which has not been advanced is advanced, and otherwise to keep things moving, seek to proceed on the basis upon which the Minister has run the case and accept what may be against us, but ‑ ‑ ‑

HAYNE J:   Let me show you the knife in the napkin, Mr Solicitor.  If you can have a satisfactory assessment in response to a later application, what is the basis on which you can then, as a tribunal, say “Look, enough is enough”?  If the application has been made and is on foot and has not been assessed, yes irritating, time consuming and the like, but how do you get to the answer “Enough is enough”.  That is the knife in the napkin - come to it, blunt it at such time as you wish.

MR GLEESON:   There is more than one napkin because what happens when the second time around the person says, “I did not do so well the second time around, I told some untruths again, but third time around I have got it all right.  I have worked as a cook, I have not told lies.  You must give me another chance.”  We find difficulty seeing that within the statutory scheme there is room for a duty on the Tribunal to accept what I put as an expansion of the issues in order to contemplate the possibility of future satisfaction of a criterion.  If there is no such duty, we then identified a bright line.  It may not be a perfect one, but it is a bright line.  The issues under review are those arising from the decision, plus anything you can put to me before my decision would come to a conclusion in the normal course – that has a proposition in it – to show that you have satisfied the criteria.

For you to say to me, “I might satisfy them in the future” is not something which engages a duty upon me to either expand my issues, or even a duty of consideration to engage in the exercise Justice Kiefel was asking me about which is, “What do I think are your prospects at a future date bringing into existence a fact which at the moment you do not have the benefit of?” 

One of the points I would make in answer to your Honour is that if that is a process that the Tribunal is required to engage in, namely to conduct some just preliminary assessment of whether the chance of getting a positive assessment unaffected by false information is realistic, we would submit that creates a tension with 230.  The purpose of 230 was to have an element of objectivity in this part of the process.  It is not for the delegate or for the Tribunal to be a skills assessor.  That is for this independent body over here.  

The task which both the magistrate and the Full Court suggested the Tribunal was bound to engage in, namely to form some preliminary prospective assessment of how a skills body might or might not approach this application, we submit that is just one which this scheme does not give, either to the delegate or to the Tribunal.

KIEFEL J:   That may be, but if we turn back to section 360(1) the invitation that the Tribunal issues must be one – it is not just a step that is taken to satisfy a statutory requirement.  It is one that is issued in a particular context and a particular case, the timing of it and the knowledge of the ability of the applicant to bring evidence are matters which the Tribunal must consider.  So the Tribunal must invite.  The invitation there must be an invitation to be able to bring your evidence forward.

MR GLEESON:   Yes.

KIEFEL J:   So if the Tribunal has knowledge that there is a difficulty with evidence and a party is saying, “I am not ready”, this affects the invitation – if an invitation is made in that background you have to question ‑ the question arises whether it is a true invitation within the meaning of the Act or, as I think was said by Justice Hely in the case that has been referred to in submissions, whether it was a hollow invitation.

MR GLEESON:   No doubt if the person is ill on the day, no doubt if an issue troubling the Tribunal is not brought to the attention of the applicant that would be a hollow invitation.  No doubt if the applicant says, “I satisfy the criteria but my evidence is coming from a witness interstate” it would be a hollow invitation, but the question in this case is this more fundamental one of the person saying, “I cannot bring any further evidence before you today because the basis upon which I ran this case before the delegate has failed.  I am trying to bring into existence a new and different way of satisfying the criterion and your invitation to be real must allow me such time as I need reasonably to try and see whether I can do that or not”. 

Now, our submission is that the invitation in this case was certainly not hollow at the front end and at the back end, once this particular issue came up, it did not become a hollow invitation to say, “Having given you what was a very fulsome process on the question whether there was a false statement and whether it was material, I am not required to allow what is really a fresh application whereby we wait to see if you get a second assessment” and, as I have emphasised, we then have to look at the quality of the material on which that second assessment was based.  Your Honours, I was just referring to the critical provisions that we submit are of assistance.  I had referred the Court to section 348.

FRENCH CJ:   Section 349(1) has some significance, does it not, for your review argument?

MR GLEESON:   Yes, and everything is then tied back to the review of the decision which provides the context of the powers.  They are not given as powers to deal afresh with the application.  They are there for the purpose of the review of the decision and in section 349(2) the various ultimate outcomes that the Tribunal can make are all by reference to that decision so that it remains throughout the subject matter of the review and not something that simply is cast aside once the matter is moved to the Tribunal.  That is confirmed by subsection (3) which is that if the Tribunal varies or substitutes a new decision that is then deemed to be the decision of the Minister. 

Your Honours, next coming to section 353 - I will deal with that a bit more in a moment in terms of the way the Full Court approached it but as a broad exhortatory provision or a provision explaining the general nature of the review, a review that is designed to meet these five, perhaps incommensurate, in some senses, criteria, that, we would submit, provides a little support, only a little support for the notion that having identified the issues in the review one would not ordinarily expect a review to be the occasion for simply allowing fresh applications.

Your Honours, next 357A(1), which did not receive much focus in the Full Court.  It is an important provision because one way of viewing what the applicant was asking for here was for an additional step by way of natural justice to be added into the process, the additional step being at a point when I have been heard on everything I wish to put in relation to the assessment that I am propounding I want the opportunity to have a deferral until I can have a second round of hearing on a second assessment which may or may not come into existence.  Your Honours, in 358 and following ‑ ‑ ‑

KIEFEL J:   Just before you go to 358, is there a question as to how section 357A(3) applies to the invitation in section 360 and the consideration of the adjournment in section 363?

MR GLEESON:   We have accepted in the written submissions that some work needs to be given to subsection (3) and that it was put back into the provision and it was designed to rectify something which Justice Hely had pointed out, which was the absent any such provision one might, perhaps wrongly, interpret all of these powers as powers to be exercised in a technical or rigid or literal fashion without regard to some higher goal.  In that sense, no doubt, one would expect that the approach the Tribunal would take to the invitation under 360, and to the adjournment under 363, would seek to be an approach which embodied considerations of fairness and justice.

But that is different to a view which says what it does in effect is erect an additional requirement which then founds a jurisdictional error claim which some strands of the reasoning below suggest is the way it operates.  Your Honours know that in the Full Court a statement by the Chief Justice and your Honour Justice Kiefel in one of the earlier cases which used the word “requirements” in the context of a background summary of provisions of the Act as being treated by the Full Court as giving this provision independent substantive operation where it becomes, as it were, a separate legal obligation which must be met before a tribunal has acted within jurisdiction, that, we would submit, is a misreading of what your Honours were saying in that case.

KIEFEL J:   Do you see section 357A(3) giving further content to an existing statutory obligation?

MR GLEESON:   At the most that is what it does, yes.

KIEFEL J:   So one might expand then, to an extent, the obligation to give a real invitation to give evidence or to consider an adjournment with the concept of fairness?

MR GLEESON:   Well, it might inform the manner in which that obligation is to be given real meaningful content.

KIEFEL J:   But, more particularly, how it is to be adjudged as to whether or not the obligation was met.

MR GLEESON:   Your Honour, I would resist the proposition that it has an expanding work to do.  In the cases that have discussed this type of provision, that is 357A(3) and 353 itself, they are dealt with as provisions which in a sense have an exhortatory or freeing character.  They free the Tribunal from necessary strict rules that a court might follow.  They have been described as “informing” and we would have to accept informing.  The notion that it expands the duty that, we would suggest - there should be some pause before that is adopted.

FRENCH CJ:   Does 397(2)(a), which is to do with the responsibilities of the principal member, tell us something about the level at which “fair, just, economical, informal and quick” is pitched in 353(1)?

MR GLEESON:   I missed your Honour’s section?

FRENCH CJ:   It is 397(2)(a).

MR GLEESON:   Yes, it does, your Honour, because 353 is a goal to be strived for in all of the functions of the Tribunal under the Act and that will include not just the manner in which a hearing occurs or a case is decided but in every sense and then the goal is to pursue the objective of a mechanism of review and the mechanism is one that will be demonstrated across many, many cases, not simply across a single case.  Then the mechanism is designed to meet these requirements that may be intention. 

So under 397(2), the principal member has the statutory responsibility to monitor operations and to try and achieve this goal and to allocate work trying to achieve the guidelines for the allocation of work and so it speaks of a goal for the Tribunal as a whole which the principal member will have responsibility for, rather than, as appears in some parts of the Full Court’s decision, a separate legal requirement which one measures by way of breach or not and then leads to jurisdictional error or not.

GAGELER J:   Can I go back to the relationship please between section 357A(3) and 360(1)?  Is the duty imposed on the Tribunal by section 360(1) conditioned by a requirement that the Tribunal in the performance of that duty act in a way that is fair and just?

MR GLEESON:   The answer to that is no.  That overstates the relationship between the two provisions.

GAGELER J:   Is the duty imposed by section 360(1) conditioned by a requirement that the Tribunal act reasonably in the performance of that duty?

MR GLEESON:   The answer is no.  Again, that is to add a requirement that is not there.

GAGELER J:   It is a pretty orthodox implication, is it not?

MR GLEESON:   No.  What one does is simply ask under section 360 whether the invitation you have given is one that in substance gave the right of appearance provided for by the provision, and so when one then applies that question simply to the particular circumstance of the case, as opposed to saying, well, there is a statement of your mandatory duty, and to that I add a condition that you must exercise the duty reasonably, and the reason I make the distinction is let us ask where Wednesbury unreasonableness fits or does not fit in relation to section 360.  Our submission would be it does not fit into section 360.  One does not ask whether the character of the invitation you gave was so far outside the range of a reasonable invitation that it, in that sense, betrayed jurisdictional error.  One simply asks whether it was an invitation of the character described in section 360, and so it is an error to add reasonableness as an extra requirement.

HAYNE J:   That string of answers, Mr Solicitor, seems to me to fail to take account of the nature of the powers being exercised by the MRT.  Leave aside the question of whether the implication Justice Gageler’s questions suggest it might be read into the section is not plain vanilla and orthodox, how do those answers fit with 349?  They do not.  You are not suggesting, are you, that the Minister’s powers in this respect are unfettered by questions of reasonable exercise, are you?  That is a very large submission.

MR GLEESON:   Your Honour has directed me to 349, which is giving the Tribunal the ability to exercise powers and discretions which would be available to the Minister at the Minister’s stage of the process.  What I was seeking to deal with was what is the way to construe section 360, which is a requirement directed specifically to the Tribunal, not to the Minister, and directed specifically to the review stage of the process.

The point I was seeking to make was that the language in section 360, which is what the Court discussed in detail in SZBEL, requires that the invitation be one “to appear . . . to give evidence and present arguments”, not generally, but “relating to the issues arising in relation to the decision under review”.

HAYNE J:   Let us explore these concepts of the issues arising in relation to the decision under review.  First, the decision to be reviewed is the decision that there should not be a grant of the sought visa, is that right?

MR GLEESON:   Yes.

HAYNE J:   Relevantly, the issues arising in relation to the decision to be reviewed include – may even be limited to, I do not know – but include one, was there an application for skills review at the time of the application for visa?  That was in this case not in dispute, is that right?

MR GLEESON:   Yes.

HAYNE J:   The second issue, and one which was the subject of dispute, was whether at the time of decision there was a favourable and untainted review, skills review, is that right?

MR GLEESON:   Yes.

HAYNE J:   What is at the time of decision?  Do you say that the MRT is to decide whether at the time of delegate’s decision there was a favourable and untainted review, or is the MRT – as at least seemed to me to be an available construction of the Act ‑ to determine whether at the time of its decision there is a favourable and untainted review?

MR GLEESON:   Well, no doubt in the primary and ordinary case it will be the former.  The question is whether the former exhausts the field.  No doubt, this MRT was focused very heavily on that former question and that the scope of the hearing it thought to be fair and accorded was driven around the concept of, the delegate found lies were told in this area, I want to give you every chance to explain whether that is the case or not and whether it is material.  So the decision in question was driven around, largely, save for that final paragraph, a view that I am having a second look by way of review of whether you were able to satisfy, at the date of decision, in this sense the delegate’s decision, the criteria, to which the answer was no, and then at the heel of the hunt when the proposition ‑ ‑ ‑

HAYNE J:   It may be, but hence the importance of the question that I asked you on which you await instruction, because if that question were to be answered on its proper construction, that the favourable skills assessment may be made in response to a request made after, and different from, the request made before application for visa, it would seem to me that the issue for the MRT is whether, at the time of its decision, there is a favourable and untainted review.

MR GLEESON:   Yes.  Well, with respect, I am apprehending there are two related aspects to your Honour’s question, the second being whether when the MRT is carrying out the review function it interprets the heading in 880.22, “Criteria to be satisfied at time of decision”, as referrable to the decision under review as opposed to its own exercise of review.  Your Honours, I am reluctant to do this, but in order to be of most assistance to the Court I think I need to ask for a 10 minute adjournment so I can have clear instructions on those two related questions.

FRENCH CJ:   Yes, all right.  The Court will adjourn briefly.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM:

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Thank you, your Honours, for that opportunity.  My instructions are not to depart from or expand the submissions that have been put in writing.  The effect of that is to accept against us that provided you have lodged an application for a skills assessment, which satisfies criterion 880.211, neither the delegate nor the Tribunal is required to confine itself to whether it is that application which is successful under 880.230.  It is also accepted on our part that the ordinary proposition that the Tribunal determines matters at the date of its decision is applicable in this particular case and it is enough if a person has (a) lodged a second application after the date of the visa application, and (b), fully satisfied 880.230 at the time the Tribunal brings its review to a conclusion.

So having said we are not seeking to expand the case into those areas what we are left with is the proposition that we have made in the written submissions that what the Tribunal is entitled to do, even in this case where it has seen that a person has a further application on foot, what it is entitled to do is to bring its review to a conclusion by simply asking itself the question “Do you satisfy today 880.230?  Do you have a positive assessment you can present to me and is that assessment unaffected by fraud?”

GAGELER J:   Do you acknowledge any limits on that entitlement?

MR GLEESON:   I have asked myself that question, your Honour, in the sense of what if the person says I need but one day.  The primary proposition I am putting, consistent with the written submissions, is not to acknowledge limits and to say that my task under this is to focus on ‑ can you present to me the positive assessment?  Is it unaffected by fraud?  It is not my task to engage in a different exercise.  What do I think your prospects might be of tomorrow or next week or next month being in a different position?  So that is the primary position we put.  There is no limit on that and it would be wrong for the Tribunal to go beyond it. 

I have accepted in the answer to your Honour Chief Justice French’s question earlier that in the case where, having composed your reasons before they become legally operative, an issue which arose in another case, it comes to your attention as the decider that there is now a document which appears to satisfy the criterion.  You are bound to take that into account in the review but you are not bound, as it were, to ‑ and perhaps this is the crunch point ‑ you are not bound to alter the timing at which you would ordinarily bring to a conclusion a review which has otherwise been fair in relation to the issues that can positively be agitated.

FRENCH CJ:   But you have a discretion to so act on your submission?

MR GLEESON:   On our primary – your Honour, the primary position is no because you are carrying out a review and if you have done all the things you are meant to do under this procedural fairness regime of statutory origin, if the person has not satisfied it, as part of your duty of bringing the review to an end, you bring your conclusions to an end.

FRENCH CJ:   So that would even defeat the I am getting it tomorrow?

MR GLEESON:   It would defeat I am getting it tomorrow.  What I then want to do, your Honour, in the submissions, is deal with two things.  One is, on the assumption that there is some form of discretion involved, I want to come to the argument that the exercise of discretion was infected by jurisdictional error, and although that is down the back of our outline but perhaps I want to come to that immediately next because that has followed from some of the questions of your Honours.  Then the final topic is to put our submissions on the two sections which were very important to the Full Court, 353 and 357A(3).

So on the assumption there is some discretion involved, if your Honours could go to the decision of Justices Greenwood and Logan, the critical material is on page 274 to 275 between paragraphs 36 to 39.  It starts with the proposition:

We respectfully agree with the factual analysis by the learned federal magistrate . . . of the circumstances –

at the time of the request.  The factual analysis is set out on the previous page 273 in paragraph 32 of the joint judgment.  Can I deal with that material as it appears to be adopted with approval by the joint judgment and then come to the balance of the joint judgment?

So in terms of the points made by the federal magistrate, first that there was absent from the Tribunal’s decision a consideration of the relative merits of the competing interests, now, that appears to be more an argument along the lines of failure to take into account relevant considerations, although it leads down to a proposition at the end of the paragraph of Wednesbury unreasonableness.  Correctly it is said the agent had said there was concerns about the second assessment and there were reasons why it was in error.

On a plain reading of the applicant’s agent’s letter there appeared good reason to be cautious of the assessing authority’s original decision.

That, we would submit, is not the role of the court on judicial review to form a view, even preliminary, about the prospects or not of this independent body coming to a positive or negative assessment.  That is a task for the independent body.  Then a little further down your Honours will see the sentence:

That matter was the only item outstanding in what otherwise ought to have been a successful application.

There are two errors in that sentence.  The first error is that the Tribunal’s decision had not dealt with any aspect of the application other than this particular disqualifying factor.  Your Honours will see that from the delegate’s decision at page 143.  The decision focused on solely 880.230.  None of the other criteria had yet been looked at by the delegate, so that the proposition that otherwise this person was about to succeed is one that is wrong.

The second reason it is wrong is the one I mentioned earlier, that even if a second assessment was given positively one would then have to conduct the inquiry into whether it was infected by false information.  So, with those two errors in that critical sentence, one then sees that the rush to the conclusion that this was unreasonableness in the Wednesbury sense an improper exercise of power is infected by that error.

Then could I come to paragraph 50 of the magistrate.  This is so because there is nothing in the Tribunal’s decision to suggest any evaluation had been affected of the agent’s contentions.  The decision to refuse was not informed by an assessment of the weight of this factor.  Our proposition is that if there is a discretion it is not a necessary or relevant part of the discretion to be going into an exercise of forming a view on the evaluation of the contentions and we have made the simple point, your Honours, that the Tribunal did not have and was not asked to receive anything other than the agent’s letter.  It did not have the second application.  It did not have the information on which it was based.

Then there is a reference to “the potential outcome” being “catastrophic when measured against the interests of the Commonwealth”.  The Full Court correctly found there was an error in that proposition because it assimilated this to some form of adversarial proceeding between the Commonwealth and the applicant, and that problem is in the next sentence as well, nor would it “have occasioned any harm to the Commonwealth”.  So, there are a series of errors, we would submit, in that finding of Wednesbury unreasonableness.

Returning to the joint judgment at page 275, paragraph 37, the first sentence has the error I have suggested earlier, namely, it is not the role of either the delegate or the Tribunal to be deciding whether a decision by the independent body is “infected by error”; that is not the way the criteria is set up.  Then the next sentence:

there was every reason to conclude that the only reason why . . . was adverse was a failure on the part of the TRA to follow its own procedures.

We would submit that this process did not invite or commit the delegate or the Tribunal to be forming views on whether the TRA breached its own rules:

For the MRT to refuse the adjournment was, effectively, to doom Ms Li’s application for review to failure.

Well, in a sense, to refuse the adjournment was to bring to a conclusion a decision on the issues that were then able to be agitated before the MRT.  And then, your Honours, 38 is very important.  The finding of Wednesbury unreasonableness is based on the propositions that there were no countervailing considerations in favour of the refusal to adjourn, and the no countervailing consideration argument leads to the proposition of a denial of a reasonable opportunity to present her case.

We would submit that there were clearly some countervailing considerations at least, considerations of strength, and that providing there were some considerations pointing each way the finding of Wednesbury unreasonableness is flawed.

GAGELER J:   That cannot be so as a legal proposition, can it, that if there are some countervailing considerations the decision cannot be Wednesbury unreasonable?

MR GLEESON:   Your Honour is correct.  I am dealing with a set of reasons which says the reason it is Wednesbury unreasonableness says there was nothing to be said on the other side of the coin.  That is what I have to first of all find some error in.  If there were some countervailing considerations then there is an error in the precise reasoning of this Court.  That does not necessarily, as your Honour puts to me, mean that Wednesbury has been dismissed, but I have to start with was there anything to be put against this adjournment?  If not then this is what the reasons require. 

Now, what was there, I then want to come to that could be put against adjourning in these circumstances, and the first matter is the degree of the opportunity which had in fact been provided to this applicant to prove that she satisfied the criterion.  Now, your Honours have a chronology and you will know from that chronology that the process in the Tribunal took some time during 2009 into 2010, and the applicant in this second application was apparently seeking to rely upon some work done, it was alleged, in early 2007 and some work done in early 2009 to make up the 900 hours that she needed. 

That process of review had gone on for some time into 2010 and as well as that everything the applicant wanted to say on the assessment, which she did have she was able to put before the Tribunal.  So that is one consideration which would relevantly point in the opposite direction.

FRENCH CJ:   You are proceeding on an examination of the Tribunal’s discretion on the assumption that your primary proposition that they did not have a discretion is correct. 

MR GLEESON:   Yes.

FRENCH CJ:   But on the hypothesis that they did have a discretion, what do you say are the legal criterion informing its exercise?

MR GLEESON:   Yes.  The first criteria at a higher level would be section 353, namely the mechanism I am looking at is one that should be just but also be quick and it should come to a conclusion.  In those circumstances, it is far from ideal, far from ideal to have a situation where a person has been given every opportunity to put their case based on an assessment, they have failed and they then seek to move it by another direction.  That is one criterion. 

The second criterion is the question of the nature of the review which, even if our strict proposition is not correct, one comes back to saying “I am reviewing a decision and really my primary, perhaps not exclusive, but my primary focus is on whether there is something the applicant can point to which shows error in that decision including error up to anything they can satisfy today and that opportunity has been fully accorded”.  A third factor which would govern it would be what was in truth the open‑ended nature of this request because it appears, with respect to the Full Court, that in effect they ‑ ‑ ‑

FRENCH CJ:   That is a matter of fact.

MR GLEESON:   As a matter of fact, yes.  In other words, is this process really directed to bringing to a fair, quick and just conclusion a process of review which this person is entitled to pursue under the statute and do I advance that goal by saying “I am going to start to conduct these further inquiries into your prospects on a new application when I really do not know whether and how that second process might play out” or am I entitled to say “I will bring my fair and just review to its conclusion which it is now heading towards”.

GAGELER J:   Is that using the language of section 353(1) to inform the content of a requirement of reasonableness in the exercise of the discretion or the performance of a duty or is it using 353(1) more directly?  It is not clear to me how you have put it.

MR GLEESON:   The former.  The fourth matter which may be a corollary is that to open this up to a possible further review really provided no satisfactory rule or guideline for the length of the further review.  Your Honours see on page 275 at the end of paragraph 36 that it was accepted that:

the MRT was under no obligation indefinitely to postpone the finalisation of its review.

That does not really grapple with the problem of the fact that the Tribunal could not in any way control the length or the process of what was requested to be the second stage of the review. 

Your Honours, in the reasons of Justice Collier the matter is approached differently.  On two points she found for the Minister.  On page 287 at paragraph 80 she accepted the proposition that the Minister’s submission that section 357A(3) did:

not create “free standing obligations” capable of creating rights which can be enforced.

Over on page 288, paragraph 83, her Honour said, near the end, that 357A(3) would not have been an adequate legal basis for the decision.  The second aspect on which she found for the Minister is on pages 298 to 299, where at paragraphs 109 and 117 she found that Wednesbury unreasonableness principles were misconceived to be applied to this case.  How then did she find error?  That is found back on page 295.  The error in paragraph 102 is a failure to consider:

failure by the Tribunal to give proper consideration to an application for adjournment –

that meaning a failing to give:

a reasonable opportunity to present evidence and argument within the meaning of s 360.

That might resonate with some of the questions your Honour Justice Kiefel has put to me, but we would submit that there are some problems with paragraph 102.  Firstly, I have put that the power to adjourn under 363 is not coupled by a duty to engage in this form of consideration, but, secondly, the consideration involved takes the Tribunal beyond the functions that it has under the statute and the skills that it has, and thirdly, one should not assimilate adjournment questions with section 360 questions. 

On the facts, your Honours will see at page 297, in paragraph 107, the first bullet point has a proposition in it which I have already made submissions against.  The second bullet point is true.  The third bullet point makes a false assumption about an adversarial process and the fourth bullet point, particularly at the bottom of the page, is inviting the Tribunal to stray into this ground where you need to make a finding that it is likely, in the circumstances of the case, that the TRA will imminently revise its assessment, and that, I have submitted, is just not the function of the delegate or the Minister. 

Your Honours, if it is convenient to move to the final topic, it was to make some submissions on sections 353 and 357A.  Can I do that through the framework of the balance of the judgment of Justices Greenwood and Logan, and could I deal with the material between paragraphs 6 and 30 commencing at page 265. 

Paragraph 6 is an accurate statement as far as it goes, that the “core function” of the Tribunal is to “review the decision”.  Paragraph 7 records the Minister’s submission as to the general law proposition, which we do not resile from, and some qualifications on that submission are found in paragraph 8.  If I could drop down to paragraph 10, this is picking up the word “requirement” from your Honours the Chief Justice and Justice Kiefel in SZGUR in the course of what was a brief description of various provisions of the Act. 

The joint judgment has placed a great deal of emphasis on this “requirement” notion and from this, it seems, deduced there is some form of overarching duty to act in the manner referred to in section 353, which is enforceable in an action for jurisdictional error.  Our submission is that that is not a fair or proper reading of what was conveyed by the use of the word “requirement” in that context.

A better guide to what is meant in section 353 comes from Minister v Eshetu, which the decision turns to next.  There is a reference to Eshetu at paragraphs 11, 12 and 13 and the proposition that is advanced at paragraph 13 is that, in effect, Eshetu can be dismissed as not relevant.  Why?  Because the equivalent section 420 appeared in a scheme at that time which had statutory review under 476, whereas here we have an analogue for constitutional review, and the last sentence in 13 says Eshetu should be treated as settling a controversy in relation to the then Act, and otherwise of not much assistance in the present case.

FRENCH CJ:   That was related to the exclusions, I think, in 476, was it not?

MR GLEESON:   Yes.  In the particular context, of course, it was looking at whether the exclusion in 476 could be reversed by reason of the equivalent of 353.  But what was critical in Eshetu was that the discussion was not limited to that interrelationship between those two provisions, but more generally looked at the nature of provisions such as section 353.  Could I ask your Honours to go to Eshetu 197 CLR 611? In the judgment of Chief Justice Gleeson and Justice McHugh, the statutory provisions are set out at 9 and 23, and the relevant discussion is at paragraphs 48 to 51.

No doubt paragraph 48 deals with the particular context of whether section 420 can be used to unwind the exclusion in section 476.  Paragraph 49 goes further and says the relationship between the provisions “was correctly explained by Lindgren J” in Sun.  The history of similar provisions, not identical but similar provisions, was considered in Qantas Airways v Gubbins:

They are intended to be facultative, not restrictive.  Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as –

inapplicable.  I will come back in a moment to Justice Lindgren.  So, then in the judgment of Justices Gaudron and Kirby at paragraphs 74 to 77 ‑ in paragraph 75, 420 is described as describing the “general nature of review proceedings” and requiring the Tribunal to act “as an administrative body with flexible procedures”.  In 76 it might inform the grounds of review.  In 77 it describes the general nature of the proceedings and then, importantly:

there is no basis for concluding that [420] operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision.

It is the fundamental submission that as at 18 January 2010, the Migration Review Tribunal knew the basic facts were in place for the first respondent to obtain a positive skill assessment.  I have taken you to those pages – 198 and 200, 202 and 206.  In other words, the Tribunal had before it evidence that this person had completed the trade qualification and that they had done the 900 hours community service and, certainly on their face, the documents looked genuine.  So when an adviser submits to a tribunal that it looks like the skill assessment authority has got it wrong, there are cogent reasons for that which are, of course, corroborated by the fact that the internal review was successful.

Inevitably, it is a practical issue here.  This is a specialist tribunal.  What is a skill assessment?  A skill assessment is simply a certification that a person has the skills.  Well, based on the ultimate decision by the TRA, at least as at 4 November 2009, the first respondent had the skills.  It is not a driver’s licence.  It is just simply looking at what are the qualifications and what is the work experience.  So the piece of evidence that was missing in some ways was a very small piece and that was the final certification of the skills the applicant actually had. 

So whilst it is not suggested that the Tribunal goes off and becomes a skill assessor, these are specialist tribunals and they would be in a position to know whether somebody is making a cogent application for an adjournment on reasonable grounds and when so little was left to be done, in my submission, it does bring the decision either as a failure to apply the natural justice hearing rule in relation to not being able to give the evidence. 

Now, your Honours, in my submissions I have referred to a number of examples - Sullivan where the Tribunal failed to allow medical evidence to be presented; Egan, again a matter of evidence and, of course Polemis, all of which determined that the failure to allow somebody an adjournment to produce more evidence was, in effect, unfair in those circumstances.  Do your Honours require me to go to any of those cases?  I have set out the exact passages in my outline?

FRENCH CJ:   We have the written submission, thank you.

MR BOCCABELLA:   Yes thank you, your Honour.  So in that context the decision in January 2010 to refuse the review without the outcome from what turned out to be a successful TRA internal review, the review was doomed to fail.  It could not succeed whereas it otherwise would have succeeded.

Your Honour the Chief Justice did ask me just before the break as to how does “fair”, “just”, “economical”, “informal” and “quick” have work to do, and I addressed that in paragraphs 11 and 12 of the extra oral submissions, and I referred to SZMOK.  I point out also in paragraphs 8 and 9, regarding the criticism by my learned friends of Justices Greenwood and Logan’s reliance on SZGUR, but as your Honour the Chief Justice and Justice Kiefel pointed out in SZGUR, that the Tribunal failed to consider the agent’s request was not established.

You will recall this was the case where it was alleged a failure to require a medical assessment by the Tribunal was in effect a jurisdictional error.  Your Honours also obviously pointed out there is nothing to suggest that the applicant could not have obtained his own psychiatric report.  So going back to what his Honour Justice Kitto said, in the myriad of circumstances it just was not done fair in that particular case, so your Honours’ comments about requirements therefore remain apposite in that particular case.

Again, looking at the issue of fair, just and economical, informal and quick, they do inform as to whether the proper review has actually taken place or whether the decision is unreasonable, as I have stated there in paragraphs 11, 12, 13 and 14 of my oral submissions.  In my submission, the law of unreasonableness is still amply set out in the reasons of Justice Mason, as he then was, in the Minister for Aboriginal Affairs v Peko‑Wallsend Ltd 162 CLR 25. At page 41, if I could take your Honours to that very briefly, obviously his Honour makes the point at the beginning that:

in the absence of any statutory indication . . . it is generally for the decision‑maker and not the court to determine the appropriate weight to be given –

to particular matters.  But his Honour went on to say:

I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations . . . but that the decision is “manifestly unreasonable”.

My learned friend’s criticism of the reasoning of the magistrate in that case, in my submission, is answered amply by that proposition in the sense that there was just not a proper weighing of the factors in relation to the adjournment.  Whether all the factors went one way or another way and whether there were residual factors, I submit, of a minor kind which may have suggested an adjournment should not be granted, the weight used by the Tribunal in, I submit, a rather cursory way to dismiss the adjournment especially in line with its previous letter which said if you need more time just let us know almost that I referred to earlier.

Your Honours, on the Project Blue Sky, which I have not supplied your Honours, but at paragraph 93 of that decision – I just do not want to lose my page on the screen here for a moment, but I will obviously give the full citation shortly – but their Honours observed there that a better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision would be invalid, and that is the preferred approach in this country in recent years, et cetera. 

My submission in that regard therefore is that when an amendment is specifically made, following some criticism by the courts, Justice [Hiley] observing that unless there was a statutory obligation put into the legislation then we would run the risk that a valid decision could be made in a way that unfair. So when that actually is a special amendment brought in after the concept of the exhaustive statement of the natural justice hearing rule then that amendment, I submit, is an intention by Parliament that these powers should only be exercised in a way that is fair and just consistent with that provision. So that extract was found in paragraph 93, which is in 194 CLR 355 at 390.

GAGELER J:   You referred to criticism by Justice Hely?  Where do we find that?

MR BOCCABELLA:   That is in my written submissions.  I will just turn that up for you.  In paragraph 17, page 3 where their Honours, Justice Merkel and [Hiley] ‑ ‑ ‑

HAYNE J:   Hely.

KIEFEL J:   Hely.

MR BOCCABELLA:   Hely, sorry. 

FRENCH CJ:   There is a Justice Hiley, but I think he has only just been appointed.

MR BOCCABELLA:   Yes, I have mispronounced that.

GAGELER J:   Thank you.  That is sufficient.

MR BOCCABELLA:   Sorry, I just got that wrong.  Brain failure happens, even on the best of occasions.  But I am very conscious of the fact that one has to get people’s names right; with a name like Boccabella, I have had every possible version of that over the years, so it is a serious error on my part.  So, in other words, their Honours were saying there at paragraph 17 that in the absence of the amendment they observed that in fact decisions could be made without being fair or just and they concluded that that was a highly undesirable outcome.  So, I submit that that deals with the Project Blue Sky submission.  Your Honours, unless I can assist you any further which, obviously, I am ready, willing and able to do, those are my submissions.

FRENCH CJ:   Yes, thank you, Mr Boccabella.  Yes, Mr Solicitor.

MR GLEESON:   Your Honours, could I take up five matters in reply?  The first, it arises out of much of the debate this morning and the example given of the 18 year old where the decision criterion is you must, at the date of decision, be under 18.  And what the example really throws up is something related to this precise case, which is, what is the legal relationship between the presence of criteria to be satisfied at the date of the decision, and steps the Tribunal might take which bear upon when it gives a decision?

To take the 18 year old example in this context, assume someone lodges the application for review today and turns 18 in two weeks and says to the Tribunal, my application is doomed to failure unless you devote sufficient resources to give me a final hearing on the review application within two weeks.  We would submit that in that example the Tribunal would not act unlawfully, or beyond jurisdiction, if it failed to allocate resources to bring about that result.

What we submit that throws up more generally – and this is a key proposition – is that the Tribunal is not required to mould the timing at which it comes to a decision in a way to improve the prospects of someone meeting a criterion which they cannot otherwise meet in the ordinary course of the hearing of the review.

HAYNE J:   Of course, the alternative method of formulating the proposition, you would say tendentiously, would be ‑ ‑ ‑

MR GLEESON:   I would never accuse your Honour of being tendentious.

HAYNE J:   Never, Mr Solicitor.  The Tribunal must mould its procedures in a way that gives the applicant for review a sufficient opportunity for the applicant to mount the case the applicant seeks to mount.

MR GLEESON:   And I would add to that, to remove the tendentiousness, the case the applicant seeks to mount of current satisfaction of conditions.

GAGELER J:   But you have only made that submission as regards the procedures of the Tribunal.  You would not take it back to the procedures of the primary decision‑maker.

MR GLEESON:   I have submitted that review is a narrower proposition than the primary decision under section 65 and it is a question of the extent of that narrowness.  The matter I wish to add to it though was a re‑emphasis back on the Court’s only jurisdiction – and this is my second point being in the area of jurisdictional error – there being no appeal to a court from the Tribunal.  The question is not whether a judge might have weighed considerations differently and come to a different view on the demands of fairness – if it is a relevant demand – but was the decision reached one which became unlawful and went beyond jurisdiction?

I just wanted to mention that because coming back to what your Honour Justice Kiefel has put on some matters this morning, if fairness is an overlay of all the discretions within this division, and your Honours can see there are many, many discretions within this division, take an example of discretion under section 359, or perhaps 359B or C, where one says you may provide further information and impose time limits on the giving of it,
is that qualified by a duty to be fair in setting the time limit?  Take another example ‑ ‑ ‑

HAYNE J:   It would be a bold judgment to say that yes, you can set the time limit as one minute after receipt of the notice, would it not?

MR GLEESON:   My proposition is, your Honour, that if fairness is taken to inform each and all of these many discretions, the process of the Court on review, and its conventional what I am putting, is still judicial review for jurisdictional error, not simply would I have exercised that discretion or that power in a different circumstance.

HAYNE J:   Accepting that to be so, and at least for my part I would have thought it was an uncontroversial proposition the one you have put, if contrary to your submission or at least principal position, 363(1)(b) the power to adjourn, were to be understood as conditioned upon reasonableness, not fairness and justice, but reasonableness, if the Court were to conclude that the particular exercise of discretionary power to adjourn was not reasonable in this case would it be open to the Court to conclude that by not adjourning in the circumstance described there was a want of procedural fairness because there was a failure to afford the opportunity to put the case desired?

MR GLEESON:   If it were framed that way, I think the final step in the syllogism would rather be perhaps a failure to comply with section 360 in terms.  The opportunity to appear was not a sufficient opportunity.

HAYNE J:   Not accorded, and that would be jurisdictional error, would it not, or a species of it?

MR GLEESON:   Then one is in that conclusion, yes.

FRENCH CJ:   In SZIAI, there was some discussion of the function of the Tribunal in making inquiries, and – I am looking at 259 ALR 429 at paragraph [20] in the joint judgment where it is said:

The failure of an administrative decision‑maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.

Of course, that was then linked into decisions which had been based on the unreasonableness ground under the AD(JR) Act, but I am just wondering whether this – the exercise of, if you like, the adjournment or deferral to discretion in this case does not have some analogy to the duty to inquire where the reason for which it is sought is that there is a matter of critical significance which can be put before the Tribunal, critical to the outcome of the case.

MR GLEESON:   That, we would submit, is not a fair characterisation of the actual circumstances of this request, for the reasons I have mentioned, namely, what was being put was my position remains.  I cannot satisfy it.

FRENCH CJ:   I understand that then.  Let us go to the larger question.  Can you draw any analogies between the question of adjournment, for the purpose of some further material being put before the Tribunal, and the kinds of considerations that inform the question whether a failure to inquire is jurisdictional error?

MR GLEESON:   Your Honour, I would submit the analogy is not a strong one.  I do not wish to repeat what I have said about the division dealing with exhaustive statements of the natural justice hearing rule, but at least one purpose of that division is to say there will be a series of staged steps which, provided those steps are followed, that is the way in which you have been given the chance to put your submissions on the issues and ‑ ‑ ‑

FRENCH CJ:   I suppose I was not looking at it through the prism of procedural fairness, rather through what might be called loosely the inquisitorial aspect of the Tribunal’s role.

MR GLEESON:   If one looks at it through that aspect I would submit the very same provisions in saying these are the steps at which you may ask for information, if you ask for information you may put time limits on it.  If they do not respond in the time limit you may ignore that subject matter further.  That inquisitorial aspect of it is regulated to a very large extent by that set of provisions and all I am submitting is we do not lose sight of the fact that this is a Tribunal that had engaged in properly each and every one of those exercises.

FRENCH CJ:   So if a very large elephant walks into the Tribunal hearing room at the last moment it does not matter so long as it has gone through the steps?

MR GLEESON:   No, your Honour, and I have accepted this morning that it is an uncomfortable conclusion for the decision‑maker, but if you have done all the work and you have written the reasons and you are about to press the button and the elephant arrives, it is a relevant elephant.  That causes a practical ‑ ‑ ‑

HAYNE J:   Do not pursue it too far, Mr Solicitor.  It is out of hand.

MR GLEESON:   I was about to hand over to Mr Kennett, your Honour, to continue the analogies.  In that sense the Tribunal cannot properly mould the timing of its decision in order to cause a detriment to an applicant or, we would submit, in order to be positively creating chances of success for an applicant. 

Can I give your Honours one more example without the animal kingdom being used?  Assume the adviser says “I have some more

information which might be coming.  I do not know when it is coming, but I think I will have it sometime within the next two weeks” and the review is otherwise complete.  Can the decision‑maker who is otherwise dealing with the decision properly say, “What I will do is I will put that one to the top of the pile, I will do it tonight, I will send it out tomorrow and that will deny that opportunity”.  Clearly, one could not do that because one would be timing the decision, in fact, interfering with the natural course of the process of review, in order to cause detriment.

In a sense, this case is partially reversed where is the Tribunal bound to say – the review has in a sense come to its natural conclusion save for this matter that arose at the eleventh hour.  What I am being told is that this person as at the date which would ordinarily be my decision cannot meet the criterion but they hope they might be able to meet it in the future.  Am I required – assuming 363 is governed by a condition of reasonableness, does reasonableness say the only course I can take in that circumstance is to allow an adjournment for a period I cannot control or specify in order to allow a person who, through the otherwise full process of review, has failed to satisfy the condition a chance to change that outcome.  If it does then we lose the case on that on that point.

Your Honours, the final matters were three.  The first concerns section 353.  The proposition that the court can solve the tension between the various desiderata in that section by a chronological order, we would submit, dissolves on first analysis.  If it were correct, where there is a tension one is to be economical before one is informal and quick and it simply does not provide any way of resolving it.  The better view is there is a range of criteria which you strive for to produce a mechanism which to the extent possible embodies all of them.

The second matter was all of the cases which are referred to by the respondent, Sullivan, Egan and the like, your Honours will know are cases where the adjournment was to seek some evidence to prove current satisfaction of the condition.  This case really does move to a level beyond any of those cases.  The final matter was the proposition, perhaps it is a factual one, that it was only a small piece of evidence missing, we would submit, for the reasons in‑chief mistakes the character of this criterion.  May it please the Court.

FRENCH CJ:   Thank you, Mr Solicitor. 

MR BOCCABELLA:   Your Honours, there is just one matter and I am not suggesting my learned friend did it deliberately, but I submit my learned friend misrepresented one of my submissions on that 18‑year‑old point.  My submission, of course, was an application lodged one year in advance and if the time was approaching one could possibly at least apply for a writ of mandamus and that may seem appropriate.  Thank you, your Honours.

FRENCH CJ:   Thank you.  The Court will reserve its decision and adjourns until 10 o’clock tomorrow morning.

AT 2.45 PM THE MATTER WAS ADJOURNED