MZAHC v Minister for Immigration - [2016] FCCA 340

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHC & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 340

Catchwords:
MIGRATION – Application for Protection visa – whether decision of the Tribunal refusing to grant the applicant a second adjournment of the scheduled hearing date was legally unreasonable – principles relevant to the consideration of legal unreasonableness – held that the decision of the Tribunal refusing to grant the applicants an adjournment of the scheduled hearing was unreasonable in a legal sense – Tribunal decision set aside and matter remitted to the Tribunal for reconsideration according to law.

Legislation:

Migration Act 1958 (Cth), ss. 36, 414, 424A, 424AA, 422B, 425, 425A, div.4 of pt.7

MZYYF v Minister for Immigration and Citizenship [2014] FCCA 75
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640

First Applicant:

MZAHC

Second Applicant:

MZAHD

Third Applicant:

MZAHE

First Respondent:

MINISTER FOR IMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1300 of 2014

Judgment of:

Judge Jones

Hearing date:

6 October 2015

Date of Last Submission:

6 October 2015

Delivered at:

Melbourne

Delivered on:

19 February 2016

REPRESENTATION

Solicitors for the Applicants:

Self-Represented

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
The decision of the Second Respondent made on 11 June 2014 be set aside.
The matter be remitted to the Second Respondent for reconsideration according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1300 of 2014

MZAHC

First Applicant

MZAHD

Second Applicant

MZAHE

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for judicial review of the decision of the (then) Refugee Review Tribunal (“the Tribunal”) dated 11 June 2014, affirming a decision made by a delegate of the Minister for Immigration and Border Protection refusing to grant the Applicants a Protection (Class XA) visa (“the visa”).

Background

The First Applicant, her husband and her son (Applicants Two and Three respectively), are citizens of India who arrived in Australia in 2009 on student visas. At this time, the First Applicant and the Third Applicant were dependent on the Second Applicant’s subclass vocational and education and training student Visa. On 31 October 2011, the Applicants made an application for the visa (CB 1 to 48).
The First Applicant’s claim to fear persecution arose from the political affiliation of her family, and in particular, the affiliation of her mother and as a member of a schedule caste. She claimed:
a)her mother was a prominent member and leader of Telangana Rashtra Samithi (“TRS”) and had a close association with the founder and President of TRS, Mr K Chandrasekhar Rao. She claimed that as a result of this association, her whole family had become victims of atrocities perpetrated by different wings of current State and Federal government (CB 7);
b)because of the nexus between the media and Government, people associated with this Democratic movement are seen as traitors. Political killings are rampant in Andhra Pradesh, most of which goes unreported (CB 7);
c)her family members had been attacked on many occasions and she had been personally threatened that her son would be kidnapped and harmed if the family did not disassociate themselves from the movement (CB 7); and
d)her membership of a scheduled caste made her vulnerable in Indian society (CB 8).
On 23 January 2012, a delegate of the First Respondent made a decision to refuse to grant the Applicants the visa (CB 66 to 77).
On 9 February 2012, the Applicants applied to the Tribunal for review of the delegate’s decision (CB 78 to 84).
On 12 April 2012, the Applicants attended a hearing. Both the First Applicant and the Second Applicant gave oral evidence. The hearing was conducted with the assistance of an interpreter in the Telugu and English languages. At the commencement of the hearing, the primary Applicant submitted a number of documents to the Tribunal (CB 104 to 169).
On 2 May 2012, the Tribunal notified the Applicants of its decision, dated 1 May 2012, to affirm the decision not grant the Applicants the visa (“first Tribunal decision”) (CB 178 to 201).
The Applicants subsequently made an application to the Federal Circuit Court for judicial review of the first Tribunal decision. The Federal Circuit Court allowed the application and made an order that the matter be remitted to the Tribunal for reconsideration: MZYYF v Minister for Immigration and Citizenship [2014] FCCA 75 (“MZYYF”) (CB 204 to 225).
On 5 February 2014, the First Applicant wrote to the Tribunal and requested that when the matter was set down for a further hearing, the assigned interpreter speak Telugu (CB 226).
On 15 April 2014, the Tribunal (reconstituted) invited the Applicants to attend a hearing on 22 May 2014, to give evidence and present arguments (CB 240 to 246).
On 19 May 2014, the Applicants’ representative made a request that the hearing be adjourned to another date, on the following grounds: that they were only retained recently and required full material and documentation from the client, and they needed to “contact her mother (the leader of TRS political party) in India to get more information regarding the applicants protection visa application” (CB 247 to 248).
The Tribunal acceded to the Applicants’ request for an adjournment (CB 249) and issued an invitation on 21 May 2014, to attend a hearing on 10 June 2014 (CB 252 to 259).
On 29 May 2014, the Applicants’ representative made a request that the new hearing date be vacated, and indicated that the primary Applicant had engaged another migration agent to assist with the matter. In the correspondence, the representative stated:
“We are conducting interviews with the clients both locally and overseas and will require time to make transcripts of the interview with the applicant’s mother (leader of TRS political party) in India.
We will be also requesting for the Tribunal to obtain statements from the applicant’s mother in India via telephone. A landline number will be provided to the Tribunal in due course.” (CB 260 to 261).
On 3 June 2014, the Tribunal declined the request for a new hearing date (CB 265). In the email sent by an officer of the Tribunal declining the request, the officer gave the following reasons:
“First, the reasons for the request appear to be very similar to the reasons for the earlier request for postponement. Secondly, the Tribunal notes that you have had 3 months to submit documents and prepare this case before the hearing as we wrote to you in late February 2014 that the case was remitted to the Tribunal.”
On 4 June 2014, the Applicants’ representative made a further request that the hearing date be rescheduled for another 3 weeks. In the accompanying letter, the First Applicant stated:
“Only as recent as on June 2, 2014 a new state government was formed and none of the other government mechanisms has been formalised. Absence of proper government mechanism is hampering our effort to seek additional confidential information and documents” (CB 272-273).
On 5 June 2014, the Tribunal declined the request for a postponement. In the email sent by an officer of the Tribunal declining the request, the Tribunal informed the First Applicant:
“The purpose of the hearing is to enable you to give oral evidence and present arguments in support of your case. At the hearing you can advise the Tribunal what documents or information you believe that you can obtain from India and the Tribunal will consider whether to give you more time to do so.” (CB 274).
On 6 June 2014, the Applicants’ representative repeated the request that the hearing date be rescheduled for a further 3 weeks. The request was accompanied by a letter from the First Applicant, in which she stated:
“Previously, I have appeared for RRT hearing and my experiencing with whole RRT hearing process was very terrifying. I was expected to give narration of all events in chronicle order was precise dates and numbers. If I was not able to remember certain events, exact dates or numbers, I was ridiculed openly.
I am trying to get additional documents from overseas, to set the record straight and have some reference to face RRT hearing more confidently. Without these documents, I will be in same position as in my previous hearing and I don’t want to go through the same experience again” (CB 275 to 276).
On 6 June 2014, the Tribunal again declined the request for a postponement. In the email sent by an officer of the Tribunal, the officer stated:
“The Tribunal has an obligation to provide you with a fair hearing and to give you every opportunity to give oral evidence and present arguments.
At the hearing you can advise the Tribunal what further documents you are expecting and how long you need to obtain them. The Tribunal will consider that request and decide whether to allow more time for you to receive any documents. If necessary, the Tribunal could give you a second hearing.” (CB 277).
On 10 June 2014, the Tribunal proceeded with that the hearing in the absence of the Applicants and/or their representative.
On 12 June 2014, the Tribunal notified the Applicants of its decision, dated 11 June 2014, to affirm the decision not to grant the Applicants the visa (CB 279 to 294).

Tribunal Decision

The Tribunal commenced its decision by setting out the history of proceedings, including the fact that the purported decision of a differently constituted Tribunal was remitted by the Court on grounds of apprehended bias, a history of the requests by the Applicant for a second adjournment and the Tribunal's refusal to grant that adjournment (CB 285 to 286 at [3] to [11]).
With respect to the Applicants’ requests for a further three week adjournment of the Tribunal hearing, the Tribunal said (CB 286 at [11]):
On 6 June 2014, at 4.55pm, the Tribunal received a fourth postponement request. The applicant said that her previous experience with the Tribunal had been ‘terrifying’. She was trying to get additional documents from overseas ‘to set the record straight’ and to face the Tribunal more confidently. The Tribunal notes that as 9 June was a public holiday in Victoria, this request was made in the afternoon of the last business day before the hearing. At 5.16pm on the same day, 6 June 2014, the Tribunal wrote to the applicant at Mr Thungathurthi’s email address. It declined the request but reiterated its advice that the applicant will be provided with every opportunity at the oral hearing to give evidence and present arguments, and that the Tribunal has an obligation to provide applicants with a fair hearing. In relation to the unspecified documents which the applicant said she was seeking to obtain from India, the Tribunal repeated what it had said in its email on 5 June 2014, that is, that at the hearing the applicant can discuss with the Tribunal what further documents she is seeking to obtain and the Tribunal can decide whether to give her more time to do so.
The Tribunal then noted that the Applicants did not appear before the Tribunal, and that, twenty-four hours after the scheduled hearing, there had been no correspondence from the Applicants or their representatives (CB 286 at [13]). As to its decision to proceed to hear the application and to finalise its decision, the Tribunal said (CB 286 at [14]):
“The Tribunal notes that under subsection 426A it has a discretion to reschedule the applicants’ appearance before it, or to delay its decision on the review in order to enable the applicants’ appearance before it to be rescheduled, in this case for the second time. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the applicants favour, but taking into consideration the particular circumstances of this case as set out below, the Tribunal has decided not to do so.”
In its decision under the heading ‘Consideration of Claims and Evidence’, the Tribunal made it clear it had had regard to the Applicant’s:
a)oral evidence in the first hearing;
b)a CD submitted to the Department which contained photographs and some video files; and
c)documents submitted to the Department and to the previously constituted Tribunal.
With respect to the oral evidence given by the First Applicant, to the previously constituted Tribunal, the Tribunal stated (CB 291 at [49] to [50]:
“49. The Tribunal acknowledges that it should only place limited weight on the evidence given to the previously constituted Tribunal in light of the Court’s findings that at some point prior to the conclusion of the hearing the member had already formed a view contrary to the applicant’s credibility.
50. However, the Tribunal notes that as the applicant did not attend an interview with the Department of Immigration, the only oral evidence it has available to it is the evidence from the hearing with the previously constituted Tribunal. The Tribunal found the applicant’s oral evidence to be contradictory and vague in significant respects as noted in the section above.”
The Tribunal noted the following concerns with the Applicant’s evidence and claims:
(a)the delay in the primary Applicant’s travel to Australia and subsequently, the more than two year delay in lodging an application for the visa (CB 292 at [52]);
(b)the Tribunal’s inability to find any evidence from independent sources, that a person by the primary Applicant’s mother’s name was a member of the TRS (CB 292 at [53]);
(c)given its concerns about the genuineness of the Applicant’s claim, it gave little weight to the affidavit from the Applicant’s mother, the letter from her advocate, the two supporting police reports and the photographs (together with Sun translated articles in Hindi or another language) (CB 292 at [54]);
(d)the implausibility that the police would produce a report in Hindi, in relation to the primary Applicant’s mother, and the same document in English, on the same date. The Tribunal was also concerned with the choice of language recorded in the English document (CB 292 at [55]); and
(e)in relation to the photographs, the Tribunal was unable to be satisfied that the person who appeared in them was the primary Applicant’s mother, that the person was engaged in TRS related political activities, or that the person was harmed in the process (CB 292 at [56]).
The Tribunal did not accept, on the evidence before it, that any of the Applicants, or any of their relatives, had been involved with the TRS or the pro-Telangana movement, or had suffered any harm in the past, as a result of their political activities or associations (CB 292 at [57]).
The Tribunal found, having regard to country information, including articles supplied by the First Applicant, that a new state of Telangana had been created on 2 June 2014, and the former leader of the TRS was the first Chief Minister of the new state. The Tribunal also noted that there had been no indications of any problems associated with the separation of the state of Andhra Pradesh into two states, which led the Tribunal to find that supporters of a separate state of Telangana were not at risk of serious or significant harm in India (CB 293 at [63]).
The Tribunal noted, in relation to the First Applicant’s claim to fear harm because she belonged to a scheduled caste, that the claim had not been particularised in the application form and at the hearing before the former Tribunal. The Tribunal was not satisfied on the evidence that the primary Applicant belonged to a scheduled caste in India (CB 293 at [64]).
The Tribunal concluded that it was not satisfied that any of the Applicants had a well-founded fear of persecution for reasons of their actual or imputed political opinion, their membership of their families, their belonging to a scheduled caste or any other Convention reason (CB 293 at [65]).
For the reasons already stated, the Tribunal was not satisfied that there was a real risk the Applicants would suffer significant harm for any reason, so as to engage the criterion in s. 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

Judicial review

The Applicants specified two grounds for judicial review in their application filed on 30 June 2014.

Ground one

The Applicants’ first ground of judicial review is as follows:
The Tribunal failed to comply with section 414(1) of the Migration Act 1958 (the Act) that is failed neglected and or refuse to review the Applicant’s application.
a) The Applicants repeated request to adjourn the matter was refused by the Tribunal.
b) The Applicant was not given an opportunity by the Tribunal to present her case.
c) The Applicant was not given an opportunity by the Tribunal to prepare her case.
d) The Tribunal was in a hurry to make a decision without giving the applicant an opportunity to prepare her case.
e) The Tribunal erred in referring to previous documentation in making a decision without hearing the applicant.
f) The Tribunal erred in making a decision by not referring to the latest development and issues as regards the applicants claim.
g) The Tribunal is not in a position to make the decision without hearing the applicant’s case.
h) The Tribunal hurried with the decision and made an ex-parte decision.
i) The Tribunal did not conduct a hearing of the matter as contemplated under the Act.
This ground raises squarely the question whether the Tribunal’s refusal to adjourn the hearing was unreasonable in a legal sense. Particulars a) to d), and g) to i), are essentially directed to the unreasonable conduct of the Tribunal precluding her from preparing and presenting her case to the Tribunal at a hearing.
The particulars e) and f) raise questions of the proper operation of ss. 424A and 424AA of the Act.
At the proceedings before the Court, as the Applicant was self-represented, I explained to her the nature of judicial review proceedings and its difference to merit review proceedings conducted by the Tribunal. I explained that the function of the Court is to examine the decision of the Tribunal and decide whether there had been jurisdictional error or, as I put it to her, “serious legal mistake.”
I asked her to explain to the Court why she said that the Tribunal did not give her the opportunity it should have.
The Applicant stated that she had requested, after the grant of the 20 day extension, a further three weeks extra time so that she could provide documents in relation to the separation of the states of Telengana and Andhra Pradesh, which occurred on 2 June 2014, and continuing quarrels with or threats to her mother. She said at the time that the Tribunal proposed to conduct its hearing, she had not been able to obtain documents from her mother’s lawyers.
When I pointed out to her, that the Tribunal had said in one of its correspondence that it would consider giving her an opportunity to provide further documents after the hearing, the Applicant referred to her experience at the previous Tribunal hearing, and that she was scared to go to the Tribunal hearing without the new documents.
I shall deal with the requirements of ss. 414, 424A and 424AA of the Act first before returning to the question of “unreasonableness”.

The requirements of sections 414, 425, 424A and 424AA

Section 414 of the Act obliges the Tribunal to review what are called RRT reviewable decisions, in circumstances where a valid application for review is made.

Sections 424A and 424AA of the Act are part of the statutory scheme for the provision of natural justice established by div.4 of pt.7 of the Act.
The relevant provisions of div.4 of pt.7 of the Act include s.422B of the Act as follows:
(1)     This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)     Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)     In applying this Division, the Tribunal must act in a way that is fair and just.
Section 425(1) of the Act provides that:
The Tribunal must 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.
Section 424A of the Act provides that:
(1)     Subject to subsections (2A) and (3), the Tribunal must:
(a)     give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)     ensure, as far as is reasonably practicable, that the Applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the Applicant to comment on or respond to it.
(2)     The information and invitation must be given to the Applicant:
(a)     except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)     if the Applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an Applicant, nor invite the Applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the Applicant, and invites the Applicant to comment on or respond to the information, under section 424AA.
(3)     This section does not apply to information:
(a)     that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member; or
(b)     that the Applicant gave for the purpose of the application for review; or
(ba)   that the Applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the Applicant to the Department; or
(c) that is non-disclosable information.
Section 424AA of the Act, which operates as an exception to the requirements in s.424A(2) of the Act for the giving of information to an Applicant which otherwise would apply, is not relevant in these circumstances as the Applicants did not appear before the Tribunal.
Breach of s.424A(1) of the Act constitutes jurisdictional error and invalidates the Tribunal’s decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77], [173] and [208]).
The Applicant did not expand, in her oral submissions in the proceedings before this Court, what previous documentation the Tribunal referred to and which caused it to err. There is no question that the Tribunal, as reconstituted, was entitled to refer to all documents on the Tribunal’s file, including documents supplied by the Applicant at earlier stages of the review process and the primary Applicant’s oral evidence to the first Tribunal. Moreover, the Tribunal was not obliged, pursuant to the exceptions set out in s.424A(3) of the Act, to give to the Applicant clear particulars of any information arising from documents that she had given in the process leading up to the review.
As to particular f), the Tribunal did refer to latest developments. It referred to country information, dated 4 June 2014 (CB 293 at [60]) as well as information and an article provided by the Applicant, submitted to the Tribunal on 4 June 2014 (CB 293 at [61] to [62]). I apprehend by this Particular, that the Applicant is referring to the latest developments that she maintains would have been available in the documents she sought to obtain from her mother, through her mother’s lawyers. It is to be noted, that the Tribunal was also not required, because of the exceptions under s.425A(3) of the Act, to give particulars of information from country information which may be adverse to the Applicant's case.
The Minister’s written submissions deal with the question of the procedural fairness obligations under the Act, by addressing two issues: firstly, whether the Tribunal complied with s.414 of the Act, and secondly, whether the Tribunal adhered to obligations to accord the Applicants procedural fairness in accordance with s.424A of the Act, and ss.425 and 425A of the Act. In relation to compliance with s.414 of the Act, the Minister submits at [32] to [34]:
32. The requirement to review a decision under s. 414(1) of the Act imposes an obligation on the Tribunal to consider the claims made by an applicant.
33. In its decision record, the Tribunal comprehensively set out the applicants’ claims and evidence (CB 289-291 [32]-[43]). The Tribunal considered and ultimately rejected, the following claims made by the applicants:
(a)     the claim to fear persecution as a result of the primary applicant’s mothers involvement with the TRS or the pro-Telangana movement (CB 292-293 [52]-[63]);
(b)     the claim to fear persecution because the primary applicant belonged to a scheduled caste (CB 293 [64]); and
(c) the applicants’ claims for complementary protection (CB 294 [66]).
34.    Further, until such time as the Tribunal has made a valid decision on the review, it has a duty to perform that particular review. This means that the Tribunal as reconstituted, still has properly before it the materials that were obtained when the decision that had been set aside was made: SZDWB v Minister for Immigration and Citizenship [2008] FCA 82 at [14]. The Tribunal was entitled therefore to have regard to all of the material that was on the Tribunal file and ‘before the Tribunal’ which comprehended documents supplied by the applicant at earlier stages of the review process and the primary applicant’s oral evidence to the first Tribunal.
In relation to ss.424A and 425 of the Act, the Minister submits at [35] to [37]:
35. The information relied upon by the Tribunal as informing its decision about the review application consisted of the applicant’s written and oral evidence to the Tribunal and country information concerning the separation of the state of Telangana from Andhra Pradesh. These categories of information are considered to be exempt from the general requirement to provide particulars: ss. 424A(3)(a) and (b).
36. By its letter dated 15 April 2014, the Tribunal invited the applicants to appear before it on 9 May 2014. At the time the letter was sent, s. 425A(3) of the Act and reg. 4.35D of the Migration Regulations 1994 (Cth), required any such letter to provide the Applicant with no less than 14 days to appear at a hearing after deemed receipt of the invitation.
37. Following a successful request for an adjournment, the Tribunal again wrote to the Applicants on 21 May 2014 and invited them to appear before the Tribunal on 10 June 2014. The re-scheduled hearing invitation also satisfied the relevant notice period.
I am satisfied that the Tribunal complied with the procedural fairness obligations under ss.425 and 425A of the Act.

Legal unreasonableness

The Applicants’ primary complaint on judicial review, is with the failure of the Tribunal, to grant her the requested second adjournment of the scheduled hearing for a period of three weeks, so as to enable her to obtain and present at the hearing before the Tribunal documents, she submits were relevant to her claim to fear persecution.
In Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640 at [41], Wigney J helpfully summarised the principles as follows:
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].
I have respectfully adopted these principles in deciding whether the decision of the Tribunal to refuse the adjournment was legally unreasonable.
With respect to the question whether the Tribunal acted unreasonably by failing to adjourn the review, the Minister submits at [38] to [44]:
38.    The Tribunal acceded to the applicants’ first request for an adjournment of the scheduled hearing date (CB 251-253). The Tribunal refused the applicants’ subsequent three requests for an adjournment. In doing so, the Tribunal:
(a)     noted that the reasons for the request were similar to the reasons for the original request for postponement (which had been granted) (CB 265);
(b)     noted that the Applicants had had three months to submit documents and present their case before the hearing (CB 265); and
(c) advised the applicants that as the purpose of the hearing was to enable them to give oral evidence and present arguments in support of their case, the Tribunal would consider any request made at the hearing for further time to obtain documents or information (CB 274, 277).
39. The decision of the Tribunal to refuse the applicants’ further requests for an adjournment was not unreasonable. The reasons for the refusal referred to at [38] above, exposed an intelligible justification: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [47].
40. Furthermore, the Tribunal demonstrated an appreciation for the statutory purpose of s. 425 of the Act when it emphasised, on two occasions, that by denying the request for an adjournment, the Tribunal was not to be understood as foreclosing consideration on the question as to whether the Applicants should be given a further opportunity (and time) to improve their case, through the obtainment of additional documents and evidence: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [79].
41. When the applicants did not appear before the Tribunal on the day of the scheduled hearing and in circumstances where the Tribunal had received no further correspondence from the applicants or their representatives some 24 hours after the date and time of the hearing, the Tribunal exercised its discretion under s. 426A of the Act to make a decision on the review without taking any further action to allow enable the applicants to appear before it.
42.    In the circumstances, which comprehended the history of the requests for an adjournment, the Tribunal’s consideration of such requests and the Tribunal’s advice to the applicants that any requests for further time to obtain documents or evidence would be considered at the scheduled hearing, the decision taken by the Tribunal was not unreasonable.
43.    As the applicants did not attend the hearing or provide any further evidence, the consequence was the rejection of their application for review. As the Federal Court (Reeves J) observed in SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [21] in relation to s. 426A(1) of the Act:
The [applicant’s] fundamental problem…is that he passed up on his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims.
44.    The decision by the Tribunal to take the course which it did, over one more favourable to the applicants did not constitute jurisdictional error: SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295; (2006) 155 FCR 159 at [55].
In my opinion, in considering whether the decision of the Tribunal to refuse a further adjournment was unreasonable in a legal sense, the whole history of proceedings are relevant.
It is appropriate to refer to the decision in MZYYF, which led to the matter being remitted for reconsideration. In MZYYF Reithmuller J, stated at [22]:
“It is not unreasonable to conclude that by the time that the relevant comments, of which the Applicant complains, were made by the Tribunal member, the Tribunal member had heard sufficient evidence to have formed a view contrary to the credibility of the Applicant. At this point, at best, the member’s conduct of the hearing changed to one of a cross-examination which certainly has a partisan appearance to it from the statements above.”
As to the language used by that Tribunal member, his Honour said at [28]:
When considering carefully what it is about these exchanges that gives one disquiet it is apparent that the phrase “I put to you…” is indicative of the person using that phrase already having a fixed view or position. It must be remembered that this phrase is somewhat of a term of art used by the legal profession with Counsel regularly utilising it as a method of putting their client’s case to a witness (usually at the end of a cross-examination) in a formal way to ensure there can be no suggestion that the version to be given by their client in the witness box has not been squarely put to witnesses who give evidence to the contrary. In this sense, for lawyers at least, the phrase is certainly indicative of squarely challenging a witness’s evidence with factual claims to the contrary. The later remonstration “I told you at the beginning to be honest with me” followed by the imperative “tell me the truth” all indicate that the Tribunal member had at least a very strong view and was conducting the interview, at least at this point, more in the form of an interrogation than an interview by a decision maker.
It is relevant to note that his Honour observed that when regard is had to the transcript as a whole “one could easily form a very negative view of the Applicant’s credibility, and that much of the material that would bear squarely on her credibility occurs before the exchanges that are most troubling”: at [30]. Nevertheless, his Honour found at [31]:
“Ultimately however I have formed the view that the conduct of the Tribunal member in this case went beyond a degree of robustness that is acceptable before a reasonable apprehension of bias would arise. The exchange at p 25 of the court Book is more akin to Counsel’s vigorous cross-examination when forcefully pursuing the position of an opposing litigant than that of a Tribunal member that must make a determination, albeit in the context of an inquisitorial proceeding.”
Having considered the history of the proceedings, and the reasons given in the correspondence from the Tribunal to the First Applicant over the period from May 2014 to June 2014, I am satisfied as to the following.
Firstly, the Tribunal was clearly aware of its obligations to provide the Applicants with an opportunity to give evidence and present arguments at a hearing in support of her case. Secondly, the Tribunal was alive to the fact that a differently constituted Tribunal affirmed the delegate’s decision, whose purported decision was remitted by the Court on grounds of apprehended bias. Thirdly, it can be inferred that the Tribunal had read the content of the decision of the Court in MZYYF. Fourthly, the Tribunal was aware from the First Applicant’s written applications, that her experience at the previous Tribunal hearing was terrifying, that she had felt ridiculed and that she wished to obtain additional documents to set the record straight and to have some documentary references with which to face the hearing. She believed that without these documents, she would find herself in the same position as in the earlier hearing. Clearly, the Applicant believed, on the basis of her previous experience, that having the documents would provide her with the best opportunity to give evidence and present arguments. All of this would have been plain to the Tribunal from the First Applicant's correspondence.
The Tribunal itself acknowledged that it should only place limited weight on the evidence given to the previously constituted Tribunal, given the Court's findings (CB 291 at [49]). However, the Tribunal proceeded to give weight to the evidence, and in particular, made a finding that the evidence was "contradictory and vague in significant respects" (CB 291 at [50]).

In my opinion, given the Tribunal’s acceptance of its obligations and knowledge of the First Applicant's experience at the hearing of the previously constituted Tribunal, which in the circumstances could only be said to be genuine, a reasonable approach would have been to be extremely cautious in having before it only the Applicant’s evidence and arguments from the previous hearing.
I accept that the Tribunal also independently made findings which went to the credibility of the Applicants’ application for a Protection visa and their claims to fear persecution; such as, the delay in making the application and the implausibility of the police reports. Nevertheless, the circumstances under which the Applicant gave oral evidence at the previous hearing and her experience of this, are, in my view, factors which are relevant in considering the question of legal unreasonableness in this matter.
The Minister refers to the fact that the Tribunal, in refusing to grant the request for a second adjournment, was at pains to emphasise that were the First Applicant to attend the scheduled hearing date and identify relevant documents, it would consider a request from her to provide such documents at a later date or, indeed, to conduct a second hearing. This, the Minister submits, supports a conclusion that the Tribunal's decision to refuse an adjournment was reasonable, as it was made clear to the Applicant that she would be given opportunities to present her case.
This submission, in my view, overlooks the concern expressed by the First Applicant to the Tribunal, that she wished to avoid a repeat of her past experience with the Tribunal hearing. In the absence of this genuine concern, the Tribunal’s explanation to the Applicants that it would consider requests for more time after the hearing, or, indeed a second hearing, would likely be reasonable. Looked at from the perspective of the history of the proceedings, this insistence by the Tribunal that she attend the hearing and take her chances for an opportunity to provide further documents during the course of the scheduled hearing, or at a second hearing, becomes, in my view, arbitrary.
One may also ask, somewhat rhetorically, if the Tribunal's reasons for refusing to grant the request for the second adjournment, included, that it would consider providing the Applicant after the hearing with an opportunity to provide further documents, or, indeed, to schedule a second hearing, the question arises, why not grant the adjournment in the first place.
The Tribunal noted that the Applicants had had three months, from the time they were advised that their application would be remitted to a differently constituted Tribunal, to obtain the documents in question. This consideration, in my view, is not necessarily compelling one way or the other.
The Applicants had first been advised of a Tribunal hearing on 15 April 2014. The hearing scheduled for 22 May 2014 was rescheduled (following a request for an adjournment) to 10 June 2014. The First Applicant requested, shortly after she was advised of the rescheduled hearing, for the further adjournment of some three weeks. The Applicant was not seeking a significant delay in the hearing and finalisation of the matter.
What is more compelling must be the reason for seeking the adjournment. I have earlier dealt with the First Applicant’s expressed wish to attend the scheduled hearing with documents she could refer to, thus avoiding her previous experience. In her correspondence to the Tribunal dated 4 June 2014 (CB 273), the Applicant referred to the formation of a new State Government on 2 June 2014. This, she explained, had hampered her efforts to obtain relevant documents. At the hearing, she maintains that these documents were in relation to her Mother’s political affiliation, which she said was still relevant at the date of the Tribunal decision.
Given the fact that the formation of the new State Government of Telangana was a very recent development at the time of the scheduled hearing, one wonders why the Tribunal persisted with the scheduled hearing, when a further period of time may well have produced more recent country information on the impact of political conflict that had existed. The Tribunal stated in its decision that there had been "no indications of any problems alone violence, associated with the separation of the state of under predation into two states." Clearly, the Tribunal was confining its finding of fact to a nine-day period in time. In the event, the Applicants having not attended the hearing and not heard from the Applicants or their representatives, the Tribunal proceeded to make its decision twenty-four hours later.
I have considered carefully whether the Tribunal's refusal to grant the First Applicant a further adjournment in the circumstances, lacked an intelligible justification and/or was so unreasonable that it can be said that the Tribunal failed to engage in its statutory task of review. I have taken into account that the standard of "legal unreasonableness" is a strict standard, and that the Court must be mindful that it is not engaging in a process which simply substitutes its view as to how the discretion should be exercised, for that of a decision-maker.
Having regard to all the circumstances, I find that the Tribunal’s reasons for refusing the First Applicant's request for a second adjournment of the scheduled hearing lacked intelligible justification, such that the Tribunal exercise its statutory discretion unreasonably in a legal sense.
Accordingly, I am satisfied that the first ground of judicial review is made out.

Ground two

The Applicant’s second ground of review is as follows:
The Tribunal failed to accord the Applicant procedural fairness and natural justice.
a) The Tribunals decision to proceed and make a decision without considering the applicants evidence and documents are unreasonable.
b) The Tribunal has failed to give an opportunity to the applicant to be heard and simply dismiss the application.
c) The Tribunal failed to give or offer the applicant an opportunity to provide evidence.
d) The Tribunal failed to accord the applicant procedural fairness.
e) The Tribunal failed to conduct a review of the Applicant’s decision.
I am satisfied, having heard the First Applicant, that the elements of this ground simply reflect those of the Applicants first ground of review. In light of my reasoning with respect to that ground, it is not necessary for me to deal with ground two of the application for judicial review.

Conclusion

For the reasons set out in my judgment, I will allow the application and remit the matter for re-hearing by the Tribunal.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 19 February 2016