Pop v Minister for Immigration and Anor (No.2) - [2020] FCCA 1437

FEDERAL CIRCUIT COURT OF AUSTRALIA

POP v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2020] FCCA 1437

Catchwords:
MIGRATION – Application for Aged Parent (Residence) (Class BP) visa – substantial delays associated with applicant’s visa application reaching the front of the queue – failure by Tribunal to grant extension of time to applicant for fulfilment of visa condition – whether decision of Tribunal legally unreasonable – jurisdictional error established – decision of Tribunal quashed.

Legislation:

Migration Act 1958 (Cth), s.363(1)(b).

Migration Regulations 1994 (Cth), sch.2, cl. 804.224.

Cases cited:

Pop v Minister for Immigration & Anor [2020] FCCA 2868.

Kelly v Australian Postal Corporation (2015) 67 AAR 359.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617.

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Applicant:

GAVRIL POP

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 260 of 2019

Judgment of:

Judge Egan

Hearing date:

19 September 2019, 19 February 2020, 11 March 2020

Date of Last Submission:

27 May 2020

Delivered at:

Brisbane

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Fronis

Solicitors for the Applicant:

Bourne Solicitors

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

The Further Amended Application for review filed on 2 April 2020 be granted.
The decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 13 February 2019 be quashed.
A writ of mandamus issue directed to the Tribunal requiring it to determine, according to law, the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Tribunal for rehearing.
For the purpose of the Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 13 February 2019.
The First Respondent pay the Applicant’s costs of and incidental to the Further Amended Application for review fixed in the amount of $7,123.75.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 260 of 2019

GAVRIL POP

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in this proceeding is a citizen of Romania. He is aged 64 years and has continuously lived in Australia, with his daughter, for the last thirteen (13) years. He has little command of the English language.
The applicant filed an Application for Review of a decision of the Tribunal made on 13 February 2019, whereby the applicant’s visa application for an Aged Parent (Residence) (Class BP) visa was refused. A Further Amended Application for review was filed on 2 April 2020, the grounds of which were as follows:
“Grounds of application
1. The Tribunal unreasonably failed/refused to adjourn the making of its decision while waiting for the outcome of an application for an Assurance of Support (AOS) made to Centrelink.
Particulars
A. The AOS was an essential element to the granting of the visa applied for.
B. The AOS was the only outstanding document for the visa applied for and the review would have been successful if it were produced.
2. The Tribunal took into account irrelevant factors
Particulars
A. The Tribunal took into account that the assurer, Mr Pop, had not provided Centrelink with proof of Australian residence status, proof of income and a passport and evidence for the last financial year.
B. The Tribunal considered these documents were required even if the assurer is a business.
C. These documents were only required to be attached to the form if the assurer is an individual.
3. The Tribunal failed to take into account relevant factors
Particulars
A. The Tribunal failed to take into account that the assurer provided to Centrelink a Certificate of Citizenship, an ABN lookup of Heavens Painters Pty Ltd and a business card, an ASIC search, Tax returns and ABN details.”
This matter was before the Court on 19 September 2019. At that time, the Court ordered that a supplementary court book be prepared, and filed, because certain documents relevant to the matter were not before the Court. The reasons of the Court given on that occasion [1] for the making of such order were relevant to the Court’s consideration of the substantive application for review, and were as follows:
[1] Pop v Minister for Immigration & Anor [2020] FCCA 2868.
1.On 14 March 2019, the applicant filed an application for review of a decision of the Administrative Appeals Tribunal handed down on 13 February 2019. That decision of the Tribunal affirmed a decision of a delegate to the Minister to refuse to grant to the applicant an Aged Parent (Residence) (Class BP) visa. That application for a visa was made on 30 May 2007.
2.The applicant is a 63 year old person of Romanian birth. At this hearing the applicant was assisted by an interpreter fluent in the Romanian and English languages. He was also assisted at the bar table by his daughter, an Australian citizen who has lived here for 26 years.
3.The applicant has lived in Australia for at least 12 years.
4.Notwithstanding that the applicant has resided in Australia since at least as early as the commencement of 2007, it was a requirement for the processing of his aged parent visa application that he produce what is referred to as an "assurance of support" - the acronym for which is AoS. Such requirement is the mandatory requirement of the visa application process in respect of which the applicant was a part. Clause 804.224 of the Migration Regulations 1994 (Cth) (the Regulations) provides as follows:
“804.224
The Minister is satisfied that an assurance of support in relation to the applicant has been accepted by the Secretary of Social Services.”
5.On 26 August 2016, a letter was sent to the applicant by the Department of Immigration and Border Protection whereby it was strongly recommended that the applicant find a potential assurer, and that such person be referred to the website of the Department of Human Services (namely Centrelink) as soon as possible. It was said, in such letter:
“Any delays in commencing the AoS assessment with the Department of Human Services (Centrelink) will result in delays in processing the visa application.”
6.It is unclear what steps the applicant, or the department, relevantly took consequent upon the sending and receipt of that letter. In any event, a further letter was sent to the applicant on 15 October 2018 by the Administrative Appeals Tribunal dated 15 October 2018. That letter was sent after the delegate had refused to grant to the applicant the visa on 12 July 2017. The basis on which the delegate had refused to grant the visa was the applicant's non-compliance with clause 804.224 - namely the appropriate provision of an AoS.
7.The significance of the letter from the Administrative Appeals Tribunal dated 15 October 2018 was that the Tribunal gave to the applicant a further two weeks – namely, until 29 October 2018 – within which the applicant was invited to provide confirmation in writing that an AoS had been accepted by Centrelink. Such letter did not make reference to any AoS having been assessed by the secretary as being compliant. Rather, it merely referred to whether an AoS “has been accepted by Centrelink” (court book 143).
8.On 25 October 2018, the Administrative Appeals Tribunal received a letter from the applicant, or at least a letter sent on behalf of the applicant, whereby it was indicated to the Tribunal that no confirmation of receipt for the assurance of support application lodged with Centrelink had been received. In those circumstances, an extension of three/four months was sought by the applicant.
9.In response to that request for an extension by the applicant, on 26 October 2018, the Tribunal wrote to the applicant acknowledging the applicant’s request for an extension of time. It was then decided to set the matter down for hearing on 16 January 2019 for review of the delegate’s decision. It was said in such letter:
This will give you around 11 weeks to gather and submit the information requested by the Tribunal and any further documentation you wish to submit.

10.It would appear that, at a time prior to the 16 January 2019 hearing date, the applicant engaged the services of one Dimitri Bourne, who was a solicitor at Bourne Solicitors of Bundall on the Gold Coast. By a letter dated 13 January 2019 sent by email to the migration and refugee division of the Administrative Appeals Tribunal (the Tribunal), Mr Bourne indicated that he had been engaged to act on behalf of the applicant in relation to his obtaining an assurance of support. Mr Bourne considered that that would be a relatively simple matter and that the application for review to the Tribunal could be heard on the papers once the assurance of support had been approved. It was noted that the applicant at the time was on a bridging visa and had been on a bridging visa for over 10 years. It was also said that the applicant and his assurer had applied for a new assurance of support since the appeal had been lodged:
“...but have not received a response. Once we have received a response on the assurance, we will provide this to your office. We believe that you will be able to hear this matter on the papers.”

11.Mr Bourne then asked for a postponement of the hearing date.
12.Mr Bourne had earlier, by an emailed letter dated 11 January 2019, advised the Tribunal that he had been engaged to act in the matter and that his firm was then awaiting a response on the AoS from Centrelink “which has been lodged” (court book page 153-155). The relevant MR5 appointment of representative form was lodged with the Tribunal indicating that Mr Bourne represented the applicant (court book page 156).
13.On 14 January 2019, the Tribunal wrote to the applicant advising the applicant that the member had considered the request carefully for a postponement of the hearing but had decided not to postpone the hearing (court book page 159).
14.The hearing proceeded on 16 January 2019. A “MRD hearing record” document recorded that the hearing commenced at 11.44 am and concluded at 12.05 pm. The hearing therefore took 21 minutes in total (court book page 161-163).
15.What transpired at the 16 January 2018 hearing, however, was that the applicant was allowed a further two weeks to obtain his AoS documentation. Though represented by Mr Bourne at the Tribunal hearing, it is apparent that, despite the involvement of Mr Bourne and his firm in terms of legal representation on behalf of the applicant, the relevant AoS was not able to be obtained by the date of the adjourned hearing.
16.A further two‑week extension was sought by Mr Bourne by email letter sent to the Tribunal on 30 January 2019. It was apparent that by that date, though within the extra two weeks period of time granted by the Tribunal at the hearing on 16 January 2019, Mr Bourne was indicating that the AoS had still not been obtained from Centrelink. He nevertheless set out in such letter that there was a reference number for the lodgement in respect of the AoS application, and there was a client reference number (CRN) in respect of the name of the assurer who was to be the subject of the AoS. The letter, relevantly, was as follows:[2]
[2] CB page 165.
“From: Dimitri Bourne
Sent: Wed, 30 Jan 2019 04:46:37 +0000
To: National Registry Mailbox
Cc: [Applicant’s email address]
Subject: CN: 1716293 Gavril POP
Attachments: Cornelius Documents.pdf
Dear Member,
Thank you for your adjournment on 16 January 2019. I confirm that our client is still waiting on a response from Centrelink. They have been in contact regularly but receive blanket responses. The reference number for the lodgement is 971418. The assurers CRN is xxx xxx xx5T.
We humbly ask for the further two week extension that was alluded to in the hearing on 16 January 2019. We understand that this matter has been ongoing and we look forward to having it finalised on the papers before 13 February 2019.
Regards
Dimitri Bourne”

(Emphasis added)

17.On 31 January 2019, the Tribunal wrote to Mr Bourne concerning his request for a further extension of time to provide documents in respect of the AoS requirement. The letter, in part, said as follows: [3]
[3] CB page 167.
“The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.”

18.Ms Tattersall, a solicitor who today appears on behalf of the respondent, indicated that the documents referred to in that letter of 31 January 2019 included documents produced by the applicant’s nephew – he being the nominated assurer – whereby such documents confirm that the nephew had the financial capacity required for AoS purposes. Such documents had earlier been forwarded to the Tribunal under cover of the email letter sent by Mr Bourne to the Tribunal on 30 January 2019. (It was pointed out by Ms Tattersall that she conceded that the nephew’s documents were sent to the Tribunal but not necessarily returned to Mr Bourne.)
19.In response to the request for a further extension of time made by Mr Bourne on 30 January 2019, the Tribunal sent a letter to Mr Bourne indicating that the applicant was to provide to the Tribunal by close of business on 31 January 2019 – the same day – evidence of where the application for the AoS was within the Centrelink organisation. The Tribunal pointed out to the applicant in such letter that one is capable of tracking one’s application and sending information relating to that tracking to the Tribunal.
20.Mr Bourne replied to that correspondence by an email letter dated 31 January 2019. That letter relevantly indicated that, pursuant to the request, the applicant and his assurer had attended Centrelink that day and received a receipt and file note correspondence from Centrelink which had then been provided to the Tribunal at its Brisbane reception that day. It was said that originals of such documentation had been handed to the Tribunal.
21.At [12] of its reasons, the Tribunal recorded that it had put to the parties that there was no evidence that the copies of the forms they had provided to the Tribunal had, in fact, been lodged with Centrelink. The Tribunal noted, for example, that the form had not been stamped to indicate that it had been lodged, nor did the parties provide a receipt or letter from Centrelink by way of acknowledgement. That finding is contrary to what was suggested in Mr Bourne’s email of 31 January 2019 to the effect that a receipt and a file note relating to the AoS application had been handed to the Tribunal that day, on 31 January 2019.
22.Ms Tattersall, when asked, was unable to provide any reason as to why financial documents of the nephew said to be supportive of the proposition that he had the financial capacity to be the applicant’s assurer were not included in the court book. One would have thought that documents required for a consideration of whether that part of the application process – or that part of the approval process - would have been so included as a relevant set of documents able to be considered by this court. That has not happened.
23.In circumstances where the court considers it important that it has an opportunity to examine the content of such financial documents and view them in the context of what would appear to be serious attempts made to obtain an AoS at a time when the applicant was legally represented (note the provision of a lodgement number and a CRN number in respect of the AoS approval process), the court considers it important that such documents be obtained and included in a supplementary court book for filing prior to the further hearing of this matter.

On 11 March 2020, Counsel for the applicant and the first respondent made submissions to the Court. Orders were made for the filing of consolidated sets of submissions, an agreed chronology, and leave was granted to the parties to file affidavits relating to the progress of the AoS application subsequent to 14 December 2018.
The agreed chronology, to the extent that it was able to be the subject of agreement, was as follows:
No. BRG 260 of 2019
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT BRISBANE
GENERAL DIVISION
GAVRIL POP
Applicant
MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
AGREED JOINT CHRONOLOGY
By order 1 of the Court’s 11 March 2020 orders, Judge Egan ordered that “The parties are to confer with a view to producing, and providing to Judge’s Chambers, an agreed chronology relevant to the Applicant seeking AOS approval between 26 August 2016 and 14 December 2018, by 4.00pm on 1 April 2020”.
The below chronology comprises the agreed chronology between the parties:*

*Date*	*Event*	*Source*
26.08.16	The Department writes to the Applicant. That letter advises that the Applicant’s subclass 804 visa application had progressed in the queue and (inter alia) requests the provision of the AOS (and warns of the consequence of the Applicant not providing the AOS promptly).	Court Book (“CB”), pp 92-101
16.11.16	The Department writes to the Applicant. That letter notes that the AOS is still outstanding and states that “The due date to provide the above information has since expired. Appreciate if you could provide an update regarding the above outstanding information. If there is no response… then this application will be decided on the basis of the information that is already available… Your urgent response is required”.	CB105-106
13.01.17	The Department tries (unsuccessfully) to contact the Applicant by telephone to discuss his application.	CB124
25.03.17	The Department contacts the Applicant by telephone to discuss the outstanding documents in relation to his application.	CB124
25.03.17	The Department writes to the Applicant requesting the provision of the AOS (and warns of the consequence of him not providing the AOS promptly).	CB107-114
03.04.17	The Applicant emails the Department. · N.b. The email says nothing about any AOS application being made.	CB115-6
19.06.17	The Applicant’s (then) assurer (Aurel Buciu) receives a request from Centrelink concerning his lodged application for an AOS · N.b. This was not communicated to the Department. · The precise timing as to when such an application was made is unclear.	CB128
18.07.17	Mr Buciu emails the Department requesting evidence from the Department to further his already lodged AOS as requested by Centrelink. A reply was received from the Department on 17 August 2017 advising that Mr Buciu is not authorised to receive the requested evidence.	CB 126
12.07.17	The Department (delegate) refuses the visa application due to not being provided with an AOS and provides a letter to the Applicant informing him of that decision.	CB120-5
26.07.17	The Applicant applies to the Tribunal for review of the delegate’s decision.	CB129-138
Post 26.07.17	Mr Buciu’s AOS application is rejected. · The precise timing as to when such an application was rejected is unclear.
15.10.18	The Tribunal writes to the Applicant requesting that evidence of the accepted AOS be provided.	CB143-4
25.10.18	The Applicant responds saying that he and Mr Buciu are awaiting the outcome of their AOS and request a 3-4 month postponement of the decision. · N.b. The reference to Mr Buciu’s AOS application appears to be a reference to a second one he lodged in October 2018 (which the Tribunal did not accept was lodged).	CB145-6
14.12.18	Corneliu Pop (on behalf of Heaven’s Painter’s Pty Ltd) applies for an AOS.	TD[18]

* The parties note that this document only comprises a chronology to the extent that the parties were able to agree on the relevant facts. Otherwise, as to the relevant facts, the parties rely on their written outlines of submissions."

An affidavit was filed on behalf of the applicant pursuant to the orders of the Court made on 11 March 2020. The affidavit was sworn by the applicant’s nephew, one Corneliu Pop. In large part, he reiterated what he said at the time of the tribunal hearing on 16 January 2019. Paragraphs [1] – [8] inclusive of such affidavit were relevantly as follows:
“1. I am the nephew of the applicant. I agreed to obtain an Assurance of Support on his behalf through my company Heavens Painters Pty Ltd.
2. On 14 December 2018, I went in person to the office of the Department of Human Services at Stockyard Ln, Beenleigh 4207 in the state of Queensland and the following events occurred on this day:
a. I caused my company to apply for an Assurance of Support with the Department of Human Services (Centrelink) for my uncle Gavril Pop.
b. When I applied on 14 December 2018, I provided Centrelink with:
i. A signed application form SU594 and included my organisation details at question 46.
ii. The letter from the AAT requesting an Assurance of Support.
iii. My Australian Citizenship Certificate
c. I completed question 46 of the application form that requested the organisation details.
d. I was advised by the employee in Centrelink of the following;
i. That my application has been successfully received/receipted, and
ii. The next step is that I will receive a phone call from an assessment staff member and then afterwards I will receive a letter regarding a bank guarantee. I was told that I need to take this letter to the bank. I bank with Commonwealth Bank but my understanding is that I could have taken the letter to any bank. Annexure A to this Affidavit contains the file note from Centrelink.
3. At that point because it was before Christmas, I was not expecting any response to the new year. My understanding was that I would receive a call first then I would be informed in that call about what I needed to do including taking the letter to the bank. I got worried when I did not receive anything in the new year and received no call.
4. On 21 January 2019 I attended in person the office of Centrelink at Woodridge to ask about the progress of the Assurance of Support. I provided further evidence to Centrelink being:
i. ABN details for Heavens Painters which is my company
ii. Tax returns for Heavens Painters which is my company
iii. My company Heavens Painters ABN and ASIC registrations
iv. My business card
v. 2018 tax assessment
vi. Amended application for the assurance of support SU594
5. Annexure B to this affidavit contains these documents and the file note from Centrelink.
6. I was not told specifically that I needed to submit these documents by Centrelink but I did it out of an abundance of caution and because I thought it would speed the process up. I was also worried about what the AAT had said or what they may say if I failed to take proactive steps as I did not want them to blame my uncle.
7. The reason I went to Centrelink is I was trying to follow up the application and find out what was happening, especially as they were supposed to contact me. I provided the amended documentation outlined above which they took. Other than that, they could not assist me with what has happened with how the application was progressing at that stage.
8. I had not received anything from Centrelink relation to the AOS application until 25 July 2019. I received a letter from Centrelink requesting further information and was requested to respond to this letter by 8 August 2019 or else the application would be dismissed. Annexure C is a copy of this letter. I did not try to follow up Centrelink earlier because my uncle was unsuccessful in the AAT. For that same reason I also never responded to that email nor called for the mandatory phone interview. If the hearing did not get dismissed in the AAT I would have, as I had before, followed Centrelink up in order to have the application processed faster rather than let the file get lost in the bureaucracy.”
The letter from the Tribunal to the applicant dated 31 January 2019, sent as it was to the applicant’s lawyer, Mr Bourne, provided as follows: [4]
[4] Court Book (CB) p. 168.
“Migration & Refugee Division
Case number: 1716239
31 January 2019
Dear Mr Pop
REQUEST FOR EXTENSION TO PROVIDE DOCUMENTS – MR GAVRIL POP
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant an Aged Parent (Residence) (Class BP) visa.
At the hearing on 16 January 2019, you were requested by the Member to provide documents confirming the Assurance of Support within 14 days. On 30 January 2019, we received a request from your representative for an extension of time until 13 February 2019 due to a delay in receiving responses from Centrelink. As this matter has been with the Tribunal since July 2017, the Member has carefully considered your request but is reluctant to grant the extension of time.
Please find attached an ‘Assurance of Support – How to Apply’ document from the Department of Human Services website. We draw your attention to step 4 which outlines that you are able to track your application. The Member requests that you please forward to the Tribunal a copy of this page which outlines that your application was submitted, the ID number of your application, an estimated completion date and a link to track the progress. Please also forward a copy of the page outlining the tracked progress of your application.
(Emphasis added)
The information should be received by close of business on 31 January 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you can provide this information by close of business on 31 January 2019, the Member will further consider the request for an extension of time to allow you to provide the confirmation of your Assurance of Support from Centrelink. If you do not, the Member will make a decision on the basis of the information before her.
(Emphasis added)
If you have any questions, please email [omitted]@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely
Jessica Fawkes
For the Registrar
Telephone: [omitted]
Attachments:
Assurance of Support – How to Apply”
The request first made in such letter, sent by email at 0.33.32 am on 31 January 2019, [5] was expressed to have been made at the request of the Tribunal Member. It was, inter alia, that the applicant provide lodgement details, and anticipated processing times, for the AoS application. The next requirement, namely that such information be provided “ … by close of business …” that day, was not expressed to have been made at the request of the Member. [6] It was surprising that such urgent requirement was not so expressed to have been made at the request of, or as required by, the Tribunal Member. Rather, on its face, it was a requirement made by a Tribunal Services Officer, Ms Fawkes, which had not been recorded as having been authorised by the Tribunal Member. It was also surprising that it was not expressed that the Member had decided that if the information requested had not been provided by the close of business on 31 January 2019, then “ … the Member will make a decision on the basis of the information before her”.
[5] CB p. 166.
[6] (It was a particularly urgent requirement, bearing in mind that there had already been substantial
delay in the processing of the applicant’s application for an Aged Parent (Residence) (Class BP) visa since the date of its lodgement on 30 May 2007. For example, it took 9.3 years between the date of lodgement of the visa application in 2007, and the date on which the applicant was advised that his application had progressed in the queue “ … to be considered for a final assessment in the 2016/17 Program Year which begins on 1 July 2016”).
The close of business requirement made by the Tribunal in its 31 January 2019 letter was responded to by a letter from Mr Bourne, sent on that day, which asserted that the applicant, and his assurer, had attended at Centrelink that day; that they had received a receipt and file note correspondence from Centrelink; and that they had caused such documents to be provided to the Tribunal that day. [7] Mr Bourne’s assertion was borne out by the printing out, on 31 January 2019, of a Department of Human Services record of the lodgement of an AoS application on behalf of the applicant on 14 December 2018, [8] and by the recording of the receipt, by the Tribunal, of such documents on 31 January 2019, by the placing of a receipt seal dated 31 January 2019 on such documents.
[7] CB p. 169.
[8] CB p. 171.
The Court accepts that the documents said by Mr Bourne to have been delivered by the applicant and his nephew to the Tribunal on 31 January 2019 were so delivered because the ‘receipt’ document:
a)on its face recorded that it related to the applicant’s nephew;
b)had a Tribunal receipt seal of 31 January 2019 stamped on it, such stamp recording that it had been received by the Administrative Appeals Tribunal Brisbane;
c)noted, consistently with what Mr Bourne had advised the Tribunal, that it had been printed out on 31 January 2019 by Centrelink; and
d)was accompanied by the AoS application lodged by the applicant’s nephew at the Beenleigh Service Centre on 14 December 2018. [9] That document was printed out at the Fortitude Valley Centrelink office on 30 January 2019 (see date stamp to that effect). It was recorded that such AoS application form had been lodged by Corneliu Pop on 14 December 2018, that there was an eighteen (18) week processing time, and that the expected time of completion was “14/4/2019”.
[9] CB p. 172.
Accordingly, because an employee of the Tribunal had, before the close of business on 31 January 2019, placed the receipt seal both on the AoS lodgement confirmation record of 14 December 2018, and on the actual AoS application form lodged on 14 December 2018, the applicant had complied with the urgent request made earlier that day by the Tribunal. Upon a reading of both documents so delivered to the Tribunal:
a)the applicant for the AoS was identified as being Corneliu Pop – the applicant’s nephew;
b)the CRN (Customer Reference Number) for the application was identified as xxx xxx xx5T (full CRN details anonymised);
c)the application date was recorded as being 14 December 2018;
d)it was apparent that the application had been lodged at the Beenleigh Centrelink Office; and
e)it was anticipated that the processing time for the application would be eighteen (18) weeks with an expected time of completion of 14 April 2019. [10]
[10] See handwritten note of processing time on application document at CB p. 172.
Further, notwithstanding the delivery of the documentation to the Tribunal on 31 January 2019, on 1 February 2019 - the day after the making of the urgent request by the Tribunal - and further notwithstanding the delivery on the same day of such documentation as requested, the Department of Human Services caused documentation relevant to the AoS application, made on 14 December 2018, to be sent by facsimile transmission to the Tribunal, to the attention of the officer who had been dealing with the matter – namely Ms Fawkes. [11] It is of note that such documentation included the AoS receipt note of 14 December 2018 and the AoS application form lodged on 14 December 2018 (that form having been signed by the applicant’s nephew and witnessed by a Centrelink officer on 14 December 2018 [12]), those being the documents delivered by the applicant and the applicant’s nephew to the Tribunal on 31 January 2019. The facsimile transmission also additionally included a receipt note, made by the Department of Human Services Centrelink office at Woodridge on 21 January 2019, which recorded that further documentation in support of the AoS application had been lodged with such Centrelink office on that day. [13] It is also of note that such further lodgement of documents in support of the AoS application was confirmed by Mr Corneliu Pop at paragraph [4] of his affidavit filed on 1 April 2020.
[11]      CB pp. 199 – 205 inclusive.
[12]      CB p. 211.
[13]      CB p. 201.
Notwithstanding its receipt of relevant AoS documentation physically lodged with the Tribunal on 31 January 2019, as well as the receipt of documentation by facsimile on 1 February 2019, the Tribunal wrote to the applicant on 1 February 2019 doubting the authenticity of the documentation so provided. [14] In part, that letter stated:
“The first document does not indicate that it was produced by the Department of Human Services and we are not able to verify from what you have submitted that this a genuine document. Further, the application submitted is stamped by the Department of Human Services dated 30 January 2019, indicating that this application was only lodged on 30 January 2019. This information is contrary to submissions by you that the application was lodged on 14 December 2018.
The Member has carefully considered your request for an extension of time. However, as we have not received the documents requested in the time frame specified, the Member has decided not to grant the extension and will now proceed to making a decision based on the information available.”
[14] CB p. 184.
Mr Bourne, by a response letter sent that day, made further submissions as follows: [15]
[15]      CB p. 185.
“From:              Dimitri Bourne
Sent:                  Fri, 1 Feb 2019 00:28:24 +0000
To:   National Registry Mailbox
Subject:URGENT RE: 1716239 – Mr Gavril Pop – QLD – Your reference: 1716239
Attachments:     IMG_20190201_0001.pdf
Dear Member,
We understand that the Tribunals priorities to finalise matters expeditiously are one factor, but also the natural justice and procedural fairness of the applicant is another.
The applicant and the assurer are awaiting a third party, being Centrelink which is outside their control.
We respectfully ask that the factual circumstances be reconsidered. They attended Centrelink on 31 January 2019. The stamp is from Centrelink and cannot be consider not to be genuine. The standard processing timeframe from Centrelink is advised to be 18 weeks, with an expected time of completion to be 14 April 2019 based on the lodgement being 14 December 2018. To confirm the Assurance was lodged on 14 December 2018, we have the following:
1. The writing on the first document from Centrelink confirms it was lodged on 14 December 2018 and
2. The file note (the second document) from Centrelink confirms/corroborates that the assurer attended the Beenleigh Centrelink office to lodge the support on 14 December 2018.
3. The AoS application was lodged and signed in Beenleigh by a Centrelink officer as can be seen on the last page. A copy of that application is attached. [16]
4. The assurer is going to Centrelink again today to obtain further proof that the assurance was lodged on 14 December 201[8].
[16]           SCB p. 61.
The assurance was not lodged on 30 January 2019. This is the date the assurer and applicant attended Centrelink to request an update.
An assurance can be lodged online or in person by paper. Our clients being elderly done the paper method on 14 December 2018 which is prior to your request that the online method be followed.
Regards
Dimitri Bourne
Lawyer and Migration Agent”
The facsimile and accompanying documents sent by the Department of Human Services to the Tribunal on 1 February 2019 ought to have allayed any of the Tribunal’s reservations about the authenticity of the documents recorded as having been received by the Tribunal on 31 January 2019, in that:
a)The facsimile was from the Department of Human Services which was the Centrelink department.
b)the facsimile coversheet clearly identified that the facsimile was to be sent to Ms Fawkes, who was the relevant officer at the Tribunal who was seeking information about the processing of the AoS;
c)the facsimile coversheet identified the Case Number attributed by the Tribunal to the Application for Review – namely 1716239;
d)the 14 December 2018 AoS lodgement receipt confirmation had written upon it the same information relating to a processing time of eighteen (18) weeks, and an estimated completion date for processing of 14 April 2019, as was recorded on the first page of the AoS application form physically delivered to the Tribunal on 31 January 2019; [17]
e)each of the 14 December 2018 and 21 January 2019 records of respective contact made at the Beenleigh and Woodridge Centrelink offices were date stamped 1 February 2019 by means of a Department of Human Services stamp. [18] The stamp for the 14 December 2018 record was in identical terms to that delivered to the Tribunal on 31 January 2019, the authenticity of which was erroneously doubted by the Tribunal.
[17] See writing on document at CB p. 200 and writing on document at CB p. 172.
[18] CB pp. 200 – 201.
As it transpired, subsequent to the attendance by the applicant’s nephew at the Woodridge Centrelink office on 21 January 2019, no further contact was made by that office with him until his receipt of a letter from Centrelink dated 25 July 2019. [19] He explained in his affidavit that he took no further action after the Tribunal handed down its reasons for decision on 13 February 2019.
[19] Annexure C to affidavit of Corneliu Pop filed on 1 April 2020.

Grounds for Review

Ground 1

Ground 1 is an assertion of legal unreasonableness on the part of the Tribunal.
In its reasons at [17] – [21], the Tribunal set out why it was not prepared to grant any further extension of time to the applicant for the AoS process to be brought to a conclusion.
Such reasons must be looked at in the context of what transpired at the 16 January 2019 hearing before the Tribunal Member. The transcript is admissible because it recorded the timeframe within which the Tribunal was prepared to positively consider the grant to the applicant of an extension of time within which to clarify AoS issues. The transcript is relevant to issues other than the inquisitorial process by which the Tribunal conducted the review hearing. Its admissibility is distinguishable from the facts in Kelly v Australian Postal Corporation (2015) 67 AAR 359. The relevant passages of the transcript are as follows: [20]
[20] See annexure A to affidavit of Dimitri Bourne filed on 3 February 2020 – Transcript (T.) p. 4.19
“UNKNOWN: Correct. Then there was an extension of time requested for the assurance of support. While the extension of time was granted with Centrelink, Immigration refused the visa in that interim period when the extension was provided. So the visa was refused. The applicant was self-represented during this time and he lodged the appeal and this is where his support, Theo, next to him, assisted with lodging the appeal. There’s no excuse for not being proactive in the matter after the appeal was lodged.
MEMBER: Particularly as we wrote to them under section 35(9)(a) in October saying you need to provide this documentation. otherwise your right for a hearing is in fact - - -
UNKNOWN: You're correct, Member. You're correct. So in October they lodged the appeal - the assurance with Ariel.
MEMBER: I don’t have a copy of that.
UNKNOWN: I don't have a copy on me but everything is on oath and if you ask the clients he can testify to this. So the assurance was - - -
MEMBER: Well as I haven 't got any evidence, I'm just not going to accept it because this has been going on for so long and the requests have been ignored or not complied with for so long. I could very easily form a view that it has been done deliberately in order to delay a decision.
UNKNOWN: Okay. So this is (indistinct) is here. He meets the 45 requirements and he's the relative of Gavril.
MEMBER: This document that you've given me is incomplete.
UNKNOWN: I can explain that, Member.
MEMBER: Okay.
UNKNOWN: I've spent qui le a bit of lime trying to get a receipt or acknowledgement letter from Centrelink - - -
MEMBER: But I mean this is not complete. The form hasn't been completed and nor do I have any of the documents that they're required to be attached to it for it to be lodged and accepted by Centrelink. So for all I know this is going to be rejected by Centrelink because it’s got no documents attached to it including, you know, you will need to provide proof of residence. You will need to provide proof of income, citizenship, passport. None of those things are attached so this is not - this is in fact not an application at all. It's an incomplete form which I will not accept as evidence that an assurance has been sought.
UNKNOWN: I understand your concern, Member. That form - the main point of that form - as you see you on the last page, it doesn't show it was receipted by Centrelink, I understand that, but it shows that it was signed before Centrelink.
MEMBER: But the form is incomplete. Unless you give me all of the attachments, I cannot accept this is a completed application. That it hasn't just been quickly kind of filled out for the purposes of this hearing today.
UNKNOWN: You're right, Member. We're not trying to delay this for one month just to have another refusal and waste the AAT's time. It takes up my time and I charge for this.
MEMBER: There is nothing - all right, let me put this to you. There is nothing in this document that shows me that you're an eligible assurer. Nothing.
UNKNOWN: Yes.
CORNELIUS POP: If you can just let me have a talk - I have pretty much (indistinct) Centrelink office. We took the forms from them. We filled it out and then we submitted it to them. They looked at them, they made sure that all of the details were correctly filled and then they said we have to now submit it to wherever it has got to go and we’ll be in touch with you or they'll be in touch with me within a month or so.
MEMBER: What about all the attachments? Attach evidence of your income for the last financial year?
CORNELIUS POP: That's the business. It's under the business.
MEMBER: I understand that but a requirement of this form is that these documents are attached.
CORNELIUS POP: I asked them if they needed it, they said we don’t. All they needed was an ABN and that - with that ABN it has all - all evidence from when they - - -
MEMBER: Okay, citizenship documents? Attach evidence of your income for the last financial year? You didn't have to provide that?
CORNELIUS POP: I have a company.
MEMBER: You didn't have to provide evidence of your citizenship, your passport, any other documentation? You haven’t filled in here a lot of questions.
CORNELIUS POP: That's all they wanted because I asked - - -
MEMBER: Citizenship, Australia, date granted. None of this information has been completed. All of page 5 is incomplete. The whole of page 6 is incomplete. Apart from -yes, there's an ABN. So your Heaven's Painters?
CORNELIUS POP: That's right, Heaven's Painters. That's all they needed. That ABN was enough for them to see who I am - - -
MEMBER: All of page 9 is not. Page IO is not. I mean it just - unless this is receipted by - it just. Okay, Mr Pop, why has it taken this long for you to provide an assurance?
CORNELIUS POP: Gavril approached me in December and told me his situation because of his recent assurance didn't meet the financial requirements. So then I said I'm sure I can help so we both went into the office and we explained the situation. They gave us the forms. We filled them out, we went back and sat with them and they went through forms, everything was filled out and they said we’re going to submit them now because I personally asked is all the information correct there? They said yes. So therefore they said they'll be in touch with me in a month or two months. They didn’t say exactly when until they - - -
MEMBER: Well it doesn't take that long. My understanding is that these things happen really quickly.
CORNELIUS POP: It was around Christmas time.
UNKNOWN: This is the reason why we’re asking for an adjournment. Because it was lodged just before the Christmas period.
MEMBER: Except he had 11 weeks. In fact he’s had two years. Two and a half years.
UNKNOWN: Two and a half years is because- there's no excuse but not for two and a half years waiting. He was of the opinion that assurance might expire, he was waiting for the AAT to invite him to apply for the assurance. So in October when the formal invitations to apply for the assurance was provided, he then started the process which was too late. Over two and a half years. I acknowledge that, Member. He had Ariel who was providing the assurance of support over this two year period and - - -
MEMBER: But it was never approved. As far as I can see it was - he never provided the documents to Centrelink. There’s a letter there where Centrelink says you need to provide these documents and clearly they were never provided. So in my mind this is all a deliberate evasion. That’s what it looks like to me.
UNKNOWN: There’s no reason for him to delay this adjournment or ask for an adjournment for one more month just to come back here again and have it refused. It doesn't assist him and an extra month in Australia doesn't make a difference for him, Member. That’s my opinion for that. The - Ariel who was the assurer, he (indistinct) the end of this period that he doesn't have his tax documents and he can't provide the assurance. So outside of his control. He was relying on Ariel. He didn’t really tell Gavril that this was happening and then he gets left up the end and then he comes to Cornelius early December. He says I need some help, please. I just found - - -
MEMBER: You were aware of this?
CORNELIUS POP: I wasn't aware of any of this.
UNKNOWN: Cornelius - - -
MEMBER: Did you ever have conversations with your father about how is it that he’s still here?
CORNELIUS POP: He’s my uncle.
MEMBER: I'm sorry.
UNKNOWN: So Cornelius comes in December - - -
MEMBER: Where's Gabriela? Why isn’t she her?
UNKNOWN: She's in New South Wales I think or - - -
GAVRIL POP: In Brisbane.
MEMBER: She's in Brisbane? Why isn’t she here?
INTERPRETER: I don’t know but she's requested to be present.
MEMBER: On the hearing invitation that was sent to you we asked that you ask her to come.
INTERPRETER: I didn't know.
MEMBER: Is she still the sponsor?
JNTERPRETER: She works in the city, in an office. I didn't know he keeps saying, I didn't know.
MEMBER: Seems to not know a lot of things. My concern is that you choose not to know.
CORNELIUS POP: In fact Member. I've now been appointed. Only recently but - - -
MEMBER: I know and I accept that there is no downside to allowing an extension given the circumstances. I still - I don’t like the look of that document. I think it looks like it is just - somebody has filled it out randomly. I have no evidence that it actually has been submitted to Social Security. However giving you another four - well , I can give you two weeks and if you need some more time after that I can give you another two weeks and that's it but you'll need to ask.”

(Emphasis added)

The final paragraph of the transcript referred to above recorded that the Tribunal Member had indicated to the applicant that he would be given two (2) weeks after the hearing date, and then another two (2) weeks after that (namely 30 January 2019), “… if you need some more time after that …” to sort out the AoS issue, if he asked. Having so been indicated by the Tribunal Member, Mr Bourne made such request for an extension of two (2) weeks by his email to the Tribunal dated 30 January 2019. [21] Notwithstanding such request, the Tribunal indicated that no such extension would be granted, and that the Member would proceed to make a decision based upon “the information available”. [22] A letter in response sent by Mr Bourne to the Tribunal dated 4 February 2019 reiterating his earlier submission that Centrelink had confirmed the lodgement of the AoS application on 14 December 2018, the confirmation of which was a concern to the Tribunal member, was not responded to by the Tribunal. [23] The Tribunal handed down its decision on 13 February 2019.
[21]      CB p. 165.
[22]      CB p. 184.
[23]      CB p. 197.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 the High Court was there dealing with circumstances analogous to the present matter. When discussing whether or not the Tribunal, in that matter, ought to have granted an adjournment application made on behalf of the applicant, it was said at [77] – [86] inclusive per Hayne, Kiefel and Bell JJ as follows:
“[77] The starting point is that the Tribunal, for the purposes of reviewing the delegate’s decision, exercises all the powers and discretions of the Minister (174). Further, and as the Minister concedes, in making a decision neither the delegate nor the Tribunal is confined to the material which was initially provided to support satisfaction of the relevant visa criteria. Those criteria are expressed to be satisfied at the time of the decision (175). If a further skills assessment is completed by TRA before the Tribunal makes its decision, the Tribunal may have regard to it. It is difficult to conceive of a circumstance where the Tribunal must not do so.
[78] The Minister submits that the Tribunal may have considered that it had little by way of discretion left to apply, because all of the steps necessary to the conduct of the review had been taken and procedural fairness was provided for in the taking of each step. That submission implies that, so long as the express requirements of Div 5 are complied with and, relevantly, an invitation has been extended to an applicant for review by the Tribunal to attend a hearing and that hearing has been held, nothing further can be required of the Tribunal.
[79] The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the Tribunal’s review while TRA reviewed the second skills assessment, must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so.
[80] The decision to refuse the adjournment request was explained by the Tribunal on the bases that (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgment of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another (176). It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.
[81] The Minister appears to translate the Tribunal’s reference to Ms Li having had sufficient opportunity as “enough is enough” and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.
[82] It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
[83] The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.
[84] There remains the possibility that the previous conduct of Ms Li influenced the Tribunal. It had continued to question her about the false information associated with her application despite her repeated admissions and the advice that the case she wished to put forward did not depend upon that information. If her prior conduct was influential, the Tribunal took into account an irrelevant consideration for the reason that Ms Li’s conduct per se was not relevant to the visa criteria. The concern of the criteria is with the information relied upon to satisfy them, a point Ms Li’s migration agent attempted to make to the Tribunal.
[85] The Tribunal’s error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law (177). The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.
Conclusion
[86] The Minister’s submission, that an act of the Tribunal in the conduct of its review which is unfair or unjust has no consequences for its ultimate decision, is not to the point. Whatever be the consequence of a breach of s 357A(3), a matter which it is not necessary to determine, it cannot be said that the Migration Act evinces an intention that the requirement of the law that the discretionary power in s 363(1)(b) be exercised reasonably not apply. That presumption of law is not rebutted. The Tribunal’s decision to affirm the delegate’s decision cannot stand.”
(footnotes omitted)
Further, Gageler J at [90] – [98] inclusive in Li said as follows:
“[90] Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty (184). Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute (185).
[91] The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made (186):
“Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.”
[92] Like procedural fairness, to which it is closely linked (187), reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty (188). The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.
Reasonableness and the Migration Review Tribunal
[93] Part 5 of the Migration Act 1958 (Cth) (the Act), governing review of decisions by the Migration Review Tribunal (the MRT), is to be construed in light of that presumed condition of reasonableness. Part 5 provides for what is properly described as “an inquisitorial, merits-based review by an independent tribunal” and for “procedures of some solemnity” (189). Division 3 imposes an overriding duty on the MRT to “review the decision” (s 348(1)): that is, “to arrive at the correct or preferable decision in the case before it according to the material before it” (190). Division 5 imposes procedural duties and confers procedural powers, including a power expressed in terms that, “[f]or the purpose of the review of a decision”, the MRT “may” “adjourn the review from time to time” (s 363(1)(b)).
[94] Nothing in Pt 5, or elsewhere in the Act, excludes the implication that the MRT is to act reasonably as a condition of the performance of its overriding duty to review a decision. Nor does anything exclude the implication that the MRT is to act reasonably as a condition of the performance of its procedural duties and of the exercise of its procedural powers.
[95] The implication of reasonableness is, rather, strengthened by the inclusion of express requirements that the MRT “shall, in carrying out its functions … pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and “in reviewing a decision … shall act according to substantial justice and the merits of the case” (s 353), and that, in applying Div 5 of Pt 5, the MRT “must act in a way that is fair and just” (s 357A(3)).
[96] The express requirements for the MRT to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and to “act according to substantial justice and the merits of the case” have been held not to result in invalidity merely because a conclusion can be drawn by a court that some action the MRT has taken does not objectively comply with one or more of the statutory expressions in which the requirement is couched (191). The requirement for the MRT to “act in a way that is fair and just” is of a similar nature (192). Both are couched in language that is broad and that is best seen to be exhortatory or aspirational. They “really describe the grounds upon which a more or less discretionary judgment must be formed” by the MRT (193).
[97] Their combined effect is to require that the MRT, in performing its duty to review a decision, seek to act: in a way that is “fair and just”; in pursuit of the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”; and according to “substantial justice and the merits of the case” (194). Their “mere erroneous application” does not amount to a failure by the MRT to comply with a requirement essential to the valid performance of its duty to review a decision; but their “neglect” does (195). Neglect in the relevant sense need not be the product of bad faith; it can be the product of unreasonableness.
[98] The MRT does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The MRT does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the MRT in fact did; and (ii) that unreasonableness, or neglect, on the part of the MRT is shown to be material to the outcome of the review that the MRT has undertaken in fact.”
(footnoted omitted)
A review by the Tribunal must necessarily be conducted, heard and determined, based upon all of the evidence placed before the Tribunal, and having regard to all relevant circumstances extant at the time of the making by the Tribunal of its decision. [24] As was said by French CJ in Li at [10]:
“[10] Section 348 provides that if an application for review of an MRT-reviewable decision is properly made “the Tribunal must review the decision” (37). It may, for the purposes of the review, “exercise all the powers and discretions that are conferred by this Act on the person who made the decision” (38). It is well established that the reviews that both the MRT and the Refugee Review Tribunal (the RRT) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue (39). The review function of the tribunals created by the Act is sometimes called “inquisitorial” (40). That designation is a characterisation of their function which distinguishes it from adversarial proceedings (41). The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears” (42). As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate (43). There are similarities to the kind of review provided by the Administrative Appeals Tribunal (the AAT), described by Brennan J in Bushell v Repatriation Commission (44) as “an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.” As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings (45). There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to legislative objectives including timeliness in its processes.”
[24] Li at [77] where it was said – “Further, and as the Minister concedes, in making a decision
One of the factors to which the Tribunal ought also to have had regard, before failing to grant any further extension of time to the applicant, was the fact that extensive delays had already occurred in the processing of the visa application, quite apart from the processing of the AoS in respect of the applicant. Having indicated that the Tribunal would allow a further two (2) week extension, after 30 January 2019, for clarification of AoS issues - namely up until 13 February 2019 - why did the Tribunal foreclose any further consideration by it of the applicant’s claims when it sent its letter of 1 February 2019, by which it indicated that it would proceed to make a decision based on the information then available to it? Why was it contextually important for it to deny to the applicant an extension of time which it had indicated, at the hearing, would be granted? No adequate reason was given by the Tribunal in either respect.
The Court finds that, as at the date of the handing down by the Tribunal of its decision on 13 February 2019, the Tribunal:
a)had had delivered to it by the applicant and the applicant’s nephew, on 31 January 2019, evidence of the lodgement of an AoS application in respect of the applicant at the Beenleigh Centrelink office on 14 December 2018 together with a copy of such application;
b)ought to have appreciated that the Administrative Appeals Tribunal date stamp of 31 January 2019 placed upon the 14 December 2018 Centrelink receipt document recorded the date on which such document was delivered by the applicant and the applicant’s nephew to the Tribunal;
c)ought to have appreciated that the Department of Human Services date stamp of 30 January 2019 placed upon the first page (said to be page 3 of 12) of the AoS application form was a record of the date on which such document was copied and provided by Centrelink to the applicant and the applicant’s nephew; [25]
[25]      CB p. 172.
d)ought to have appreciated that it had had delivered to it on 31 January 2019 the AoS application form lodged in respect of the applicant at the Beenleigh Centrelink office on 14 December 2018. The Tribunal receipt stamp confirmed that it was delivered on 31 January 2019; [26]
e)had received a facsimile from the Department of Human Services (Centrelink Fortitude Valley office) on 1 February 2019 which attached AoS application records of 14 December 2018 and 21 January 2019, together with AoS application form lodged on 14 December 2018;
f)ought to have appreciated that the documents referred to in subparagraph (e) hereof were forwarded by facsimile to the Tribunal as a consequence of the sending to the Tribunal by Mr Bourne of his letter of 1 February 2019 – in which it was said:
“… the assurer is going to Centrelink again today to obtain further proof that the assurance was lodged on 14 December 201[8].” [27]
g)ought to have appreciated, as a result of the receipt by it of the letter from Mr Bourne dated 4 February 2019, that there was no basis for the Tribunal doubting the authenticity of the documents received by it on 31 January 2019;
h)ought to have appreciated that the outcome of the AoS application process could realistically have been determinative of the Tribunal’s decision in relation to the applicant’s visa application;
i)ought to have appreciated that the time for the processing of the AoS application was something over which neither the applicant nor his nephew had any control; and
j)ought, therefore, to have delayed its determination of the application for review pending the processing by the Department of Human Services of the AoS application made in respect of the applicant.
[26]      See receipt stamp of Administrative Appeals Tribunal Brisbane in respect of AoS application
form – CB p. 172.
[27]      CB p. 185.

Whether it is reasonable or not for a Tribunal to refuse an adjournment application necessarily depends upon the factual context in which such application is made. There can be no hard and fast rule which ought invariably to be applied. Cases such as Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 must be looked at in the light of their own facts.
The Court appreciates that one has to get over a high bar to establish legal unreasonableness. The Court adopts what was said by Wigney J (with whom Allsop CJ and Griffiths J agreed) in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [92] where it was said:
“[92] The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.”
The Court further appreciates that jurisdictional error will not be established where reasonable minds might differ about an outcome concerning the exercise of power. [28]
[28] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan
and Bell JJ.
The first respondent has conceded that in the light of the contents of the affidavit of Corneliu Pop filed on 1 April 2020, the Minister would no longer contend that the applicant had failed to establish that any unreasonableness error was immaterial. [29]
[29] Paragraph [57] of first respondent’s consolidated submissions filed on 20 May 2020.
Based upon the facts before the Tribunal as at the date of its decision on 13 February 2019, the Court finds that had the Tribunal granted an extension of time for the applicant to persist with the AoS application made on his behalf by his nephew, the Tribunal could realistically have arrived at a different decision on the question as to whether the visa application ought to have been refused. [30] That issue was material to the determination of the substantive rights of the applicant in respect of the consideration of his visa application.
[30] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46]
The Court finds that the refusal on the part of the Tribunal to grant an extension of time, in the circumstances, lacked an evident and intelligible justification, in the context of what their Honours Hayne, Kiefel and Bell JJ found in Li at [76] where it was said:
“[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King (173) that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The decision of the Tribunal was not one capable of justification on the basis that another logical or rational decision maker may have arrived at the same decision as the Tribunal. Had the Tribunal undertaken a considered examination of all of the information before it, the only fair, just and reasonable outcome was for it to grant the extension of time requested. It is apparent that the Tribunal did not appropriately intellectually engage with all of the relevant issues before it.
The Tribunal ought to have adjourned the hearing and determination of the review being conducted by it until such time as the AoS issue had been resolved. The applicant was legally represented, and matters had been progressed expeditiously on behalf of the applicant by his lawyers leading up to the 16 January 2019 Tribunal hearing. There ought to have been no doubt on the part of the Tribunal that the continued legal representation of the applicant would not have resulted in a timely determination of the grant or refusal of the AoS application made by the applicant’s nephew. So much was apparent from the material before the Tribunal.
The Tribunal fell into jurisdictional error in arriving at its decision to refuse to grant the visa. It failed to properly conduct a review of the delegate’s decision.
The Tribunal ought to have adjourned the hearing of the review before it pursuant to the provisions of s. 363(1)(b) of the Act.
The decision of the Tribunal is quashed. The Court will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 5 June 2020

         – T. p. 8.31.          neither the delegate nor the Tribunal is confined to the material which was initially provided to
         support satisfaction of the relevant visa criteria. Those criteria are expressed to be satisfied at
         the time of the decision (175).”         per Bell, Gageler and Keane JJ.