Sandhu v Minister for Immigration & Border Protection

[2015] FCCA 711

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 711

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether it was legally unreasonable for the Migration Review Tribunal to refuse the first applicant further time in the order of 4 weeks to await the outcome of an assessment by Trades Recognition Australia which may have provided the first applicant with evidence that may have supported an application to waive Public Interest Criterion 4020 – jurisdictional error – writs issued.

Legislation:
Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.31, 65, 97, 338, 474

Migration Regulations 1994 (Cth) regs.1.03, 2.01, 2.26B.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration and Citizenship [2012] FMCA 145
Zhang v Minister for Immigration & Anor [2012] FMCA 1011
Mudiyanselage v Minister for Immigration and Citizenship[2013] FCA 266
Minister for Immigration and Citizenship v Li [2013] HCA 18
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Associated Provincial Picture House Ltd v Wensbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner for Taxation (1949) 78 CLR 353
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280
Minister for Immigration and Border Protection v Pandey [2014] FCA 640

First Applicant: SARDEEP KAUR SANDHU

Second Applicant: BALIHAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2397 of 2013

Judgment of: Judge Emmett

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Radhi Nair

Solicitor for the Respondents: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2397 of 2013

SARDEEP KAUR SANDHU

First Applicant

BALIHAR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 13 September 2013 and handed down on 16 September 2013 (“the  MRT”).

2. The first applicant seeks review of a decision of the MRT to refuse the grant of a Skilled (Provisional) (Class VC) visa (“the Applicant”). The claims of the second applicant are wholly dependent upon the claims of the Applicant.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 17 December 2009, the Applicant applied for a Skilled (Provisional) (Class VC) visa. That application included her partner, the second applicant. The applicant nominated “cook” as being her relevant occupation and stated that she had a skills assessment issued by Trades Recognition Australia on 16 December 2009 (“TRA”). The application did not include a TRA reference number, stating that it was to be advised.

2. On 12 February 2010, the Applicant was notified by TRA that her application for skills assessment was successful.

3. On 11 January 2011, TRA advised the Department of Immigration and Citizenship (“the Department”) that the outcome of the Applicant’s skills assessment had been revoked on the basis that the work reference in support of the Applicant’s application was fraudulent.

4. On 19 June 2012, the Department invited the Applicant to comment on information before the Department that the Applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to her visa application, which was relevant to considering whether the Applicant had satisfied Public Interest Criterion 4020 (“PIC 4020”).

5. On 11 July 2012, the Applicant’s migration agent responded to the Department’s invitation to comment, stating “TRA was not validly appointed until 28 September 2011, so my client do not have any case to answer.”

6. On 24 July 2012, the Delegate refused the Applicant’s application for a Skilled (Provisional) (Class VC) visa.

7. On 3 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

8. On 13 September 2013, the MRT affirmed the decision of the Delegate not to grant a Skilled (Provisional) (Class VC) visa.

9. On 4 October 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled (Provisional) (Class VC) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. A primary criteria to be met in respect of a Skilled (Provisional) (Class VC) visa at the time of application was cl.485.221 of Schedule 2 to the Regulation, which requires that an applicant’s skills have been assessed as suitable for a nominated skilled occupation. Relevantly, clause 485.221 is as follows:

   “485.221      (1)   The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.”

   (emphasis added)

3. Regulation 1.03 of the Regulations states the meaning of “skilled occupation” and it is common ground that a cook is within the relevant definition.

4. Relevantly, cl.485.224 of Schedule 2 to the Regulations requires that an applicant meet Public Interest Criterion 4020 (“PIC 4020”). PIC 4020 is contained in Schedule 4 to the Regulations, and is as follows:

   “4020        (1)   There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)    the application for the visa; or

   (b)    a visa that the applicant held in the period of 12 months before the application was made.

   …

   (4) The Minister may waive the requirements of any or all of the paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a) compelling circumstances that affect the interests of Australia; or

   (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.”

5. The applicant concedes that the first TRA assessment was a bogus document in accordance with the definition in s.97 of the Act.

6. Under s.338 of the Act, a decision to refuse to grant a Skilled (Provisional) (Class VC) visa is a decision which may be reviewed by the second respondent.

7. Under s.474(2) of the Act, a decision of the second respondent is a ‘privative clause decision’. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

8. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 24 July 2012, the Delegate refused the Applicant’s application for a Skilled (Provisional) (Class VC) visa on the basis that the Applicant had supplied a bogus document supporting her claim to have completed 900 hours’ work experience at Last Train to Bombay Restaurant.

2. The Delegate gave weight to the TRA investigation of the Applicant’s work reference, in finding that the reference given by the Applicant was fraudulent.

3. The Delegate found that the Applicant did not meet PIC 4020. On that basis, the Delegate found that the Applicant did not meet cl.485.224(a) of Schedule 2 to the Regulations and therefore did not meet the requirements for the grant of a Skilled (Provisional) (Class VC) visa.

4. Accordingly, the Delegate refused to grant the Applicant a Skilled (Provisional) (Class VC) visa.

The MRT’s review and decision

1. On 3 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 8 July 2013, the MRT wrote to the Applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 27 August 2013 to give oral evidence and present arguments.

3. On 27 August 2013, the Applicant attended the MRT hearing and gave evidence.

4. On 10 September 2013, the Applicant made a post-hearing submission to the MRT.

5. The MRT confirmed with the Applicant that her skills assessment had been revoked by TRA and noted that the Applicant had applied for a further skills assessment but had not been successful.

6. The MRT noted the Applicant’s argument that TRA’s decision to revoke the assessment was unfair and unreasonable and that she should not be punished for the wrong-doing of her employer. The MRT noted the Applicant’s submission that TRA denied her procedural fairness in that it did not give her the opportunity to address its concerns. The MRT further noted that the Applicant had not explained how TRA had breached its procedural fairness obligations and was not satisfied that the Applicant had been denied procedural fairness.

7. The MRT found that TRA was the relevant assessing authority. The MRT was not satisfied that the Applicant had been assessed as suitable by TRA for her nominated skilled occupation, and was therefore not satisfied that the Applicant met the requirements of cl.485.211 of Schedule 2 to the Regulations.

8. The MRT considered the Applicant’s post-hearing request for an adjournment for the purpose of applying to TRA for a second skills assessment. The MRT refused to grant an adjournment on the basis that it formed the view that the applicant did not meet PIC 4020 for the reasons below and that this finding would not be affected by  the provision of a new skills assessment.

9. The MRT then considered whether the Applicant met PIC 4020. The MRT noted that the Applicant provided to the MRT a copy of the Delegate’s decision. The MRT noted the Delegate’s decision indicated that the TRA skills assessment was revoked following an investigation which showed that the work reference, on which the skills assessment had been based, was fraudulent.

10. The MRT found that the Applicant had not provided any probative evidence as to her employment or any satisfactory evidence to show why the investigation carried out by TRA was of no probative value.

11. The MRT considered it significant that the Applicant was unable to present any documentary evidence of her employment. The MRT noted the Applicant’s claims to have worked as a volunteer, to not have been issued pay records, taxation records or other records of her employment. The MRT further noted that the Applicant did not have time sheets, in spite of her claim to have worked 900 hours and also noted the Applicant’s claims to be unable to contact her manager or employer. The MRT noted that the Applicant provided no further evidence of employment, such as statements from colleagues.

12. The MRT did not accept that the employment reference from the Applicant’s employer was of probative value as evidence of her employment where there was a suggestion that the employer was engaged in inappropriate practices.

13. The MRT found that the TRA assessment was a bogus document as it was obtained because of a false or misleading pursuant to PIC 4020.

14. The MRT considered whether PIC 4020 should be waived, but found that there were not compelling circumstances that affected the interests of Australia, or that there were compassionate or compelling reasons that affect the interests of an Australian citizen or permanent resident, to warrant waiving PIC 4020.

15. On this basis, the MRT found that the Applicant did not satisfy PIC 4020 for the purposes of cl.485.224 of 485.221 and affirmed the decision not to grant a Skilled (Provisional) (Class VC) visa.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Radhi Nair, of counsel.

2. The applicant sought and was granted leave to file in Court a Further Amended Application. That Further Amended Application contained the following grounds:

   “Ground One: The purported decision of the Tribunal is vitiated by the Tribunal’s legal unreasonableness in refusing to grant an adjournment to provide a skills assessment.

   1. The Tribunal found that the applicant had not satisfied a statutory criterion for the grant of the visa, cl.485.221. This criterion requires that – at the time of the decision – the applicant’s skills assessed by a relevant assessing authority (here, TRA) as suitable for the applicant’s nominated skilled occupation of cook.

   2. At the time of the hearing the applicant did not have a skilled assessment. Her previous skills assessment had been withdrawn.

   3. On 10 September 2013 the applicant [sought] an adjournment to provide the Tribunal with a new skills assessment, in place of the skills assessment that had been withdrawn.

   4. The Tribunal proceeding to its decision without granting the adjournment.

   5. The scope and purpose of the statutory discretion to adjourn is to allow the applicant to present her case. It must be exercised reasonably. Acting outside the scope and purpose of the discretionary power is acting beyond jurisdiction. It is legally unreasonable.

   Ground Two: The Tribunal’s purported finding that the Applicant breached PIC 4020 is vitiated by the Tribunal’s failure to give the applicant a meaningful opportunity to present her case.

   1. The applicant sought an adjournment (see above).

   2. The Tribunal’s refusal to grant the adjournment was based on its view that the provision of a new skills assessment would not affect the determination the Tribunal had already formed that the applicant had not satisfied the criterion in regard to PIC 4020.

   3. The Tribunal, upon making a finding that an applicant has given or caused to be given, a bogus document to the Minister must consider whether or not to apply its statutory discretion to apply the waiver provisions. This, in turn, requires the Tribunal to consider a statutory consideration as to whether there are “compelling… circumstances that affect the interests of Australia” justifying the grant of the visa.

   4. The Tribunal did not suggest that there was no prospect of a skills assessment being obtained or that the outcome of the application for the skills assessment could not be known in the near future.

   5. By concluding the review without allowing the applicant to present the skills assessment the applicant had applied for and without allowing the applicant to present arguments in regards to it, the Tribunal failed to give the applicant the opportunity to present her case. The Tribunal’s purported finding that the applicant did not satisfy the criterion in regard to PIC 4020 is vitiated by jurisdictional error.

   Ground Three: The Tribunal’s purported determination is infected by actual bias

   1. The Tribunal, at the time the request for the adjournment was considered, had already formed the view that the applicant had not satisfied the criterion in regard to PIC 4020.

   2. In refusing the adjournment, the Tribunal proceeded on the basis that the view it held at the time of the request for the adjournment could not and would not be changed by the further evidence of the argument. This was prejudgment. It is conclusive proof of actual bias.”

3. Counsel for the Applicant summarised the complaints in the grounds above as a contention that the MRT’s discretionary power to adjourn the review must be exercised reasonably. Counsel for the Applicant contended that, in light of the evidence before the MRT, the Applicant had applied for a provisional skills assessment which was likely to be assessed within 30 days. In those circumstances the Applicant contended that it was unreasonable in the sense that it was a denial of procedural fairness to the Applicant not to grant the adjournment. Counsel for the applicant did not otherwise address the grounds seriatim.

4. In support, counsel for the Applicant, Mr Nair, referred the Court to Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”). Li was a similar case to the one before this Court. In Li the visa applicant had failed before the Migration Review Tribunal because her provisional skills assessment had involved a bogus document. The visa applicant applied for a further assessment in which she was again unsuccessful. Following the hearing before the Migration Review Tribunal but before its decision was handed down, the visa applicant sought an extension of time for review of the second unsuccessful assessment. The Migration Review Tribunal refused to delay its decision on the basis that the Migration Review Tribunal considered that the visa applicant had been provided with enough opportunities to present a case and the Migration Review Tribunal was not prepared to delay its decision any longer.

5. In Li, French CJ referred to FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 in support of the proposition that extended discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment. French CJ, in considering Associated Provincial Picture House Ltd v Wensbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 stated that reasonableness may be taken to encompass “unreasonableness from which an undisclosed underlying error may be inferred.” At [28], French CJ stated as follows:

   “28. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense…

   30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence… a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.”

   (emphasis added)

6. In considering the MRT’s statutory power to adjourn a proceeding, French CJ had regard to the well-established proposition that orders should be made “as they shall find to stand with equity and good conscience” (see Li at [13]). French CJ noted at [17] that “The MRT is empowered, for the purpose of a review of a decision, to do a number of things including seek “any information that it considers relevant”, “take evidence on oath or affirmation" and [pursuant to s.363(1)(b) of the Act] "adjourn the review from time to time".”

7. In the case before this Court, the applicant’s migration agent submitted that there was good reason to expect that the provisional skills assessment to be conducted by the TRA would be successful and completed within 30 days of 4 September 2013.

1. A file note in the records of the MRT, dated 9 September 2013, suggested that the Applicant had been given until 10 September 2013 to provide further evidence, the hearing having taken place on 27 August 2013. The file note makes clear that the Applicant was requesting more time. The MRT acknowledged receipt by it of a letter date 9 September 2013 from the Applicant’s migration agent requesting a further four weeks on the basis that the Applicant had applied to the TRA for another skills assessment and expected that her qualifications would be assessed as suitable. The letter enclosed a written application to the TRA, dated 4 September 2013, acknowledging receipt of the applicant’s request and her documents and evidence in support. As stated above, the TRA acknowledgment of receipt of application noted that the application was likely to be assessed within 30 days of receipt of the Applicant’s evidence.

2. The MRT’s refusal to provide further time was dealt with in its decision record dated 13 September 2013 and sent to the Applicant on 16 September 2013.

3. The MRT referred to the Applicant’s telephone conversation with the MRT on 9 September 2013 in noting that the Applicant made another application to the TRA and that she requested that the MRT grant her more time to obtain the skills assessment. The MRT stated that “the Tribunal has considered the applicant’s request but has decided not to grant her more time because, for the reasons stated below, the Tribunal has formed the view that the applicant does not meet PIC 4020 and that would not be affected by the provision of a new skills assessment.”

4. In considering whether the requirements of PIC 4020 should be waived, the MRT stated as follows:

   “26. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03.

   27. The applicant has not identified any compelling circumstances or any compassionate or compelling circumstances that justify the granting of the visa. On the evidence before it, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of Australia or that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. The Tribunal determines that the requirements of PIC 4020(1)(a) should not be waived. The Tribunal is not satisfied that the applicant meets PIC 4020 for the purpose of cl.485.224. The Tribunal is not satisfied that the applicant meets that provision. The secondary applicant does not meet cl.485.321 and there is no evidence before the Tribunal that he meets the primary criteria for the grant of the visa.”

5. Counsel for the Applicant contended that if the Applicant had been able to provide a favourable TRA assessment, in considering whether to waive PIC 4020(1), the Applicant would have had some evidence to support a submission that there may be compelling circumstances that affect the interests of Australia in providing the Applicant with a skilled visa as a cook. That submission was denied to the Applicant because of the MRT’s refusal to grant the Applicant the further time to allow for the new TRA assessment.

6. The question for this Court is whether or not that refusal to grant that further time to acquire a satisfactory TRA skills assessment, which was essential for her success, was legal unreasonableness from which an undisclosed underlying error may be inferred (see Avon Downs Pty Ltd v Federal Commissioner for Taxation (1949) 78 CLR 353 at 360 per Dixon J; Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 at 289 per Alsop CJ, Robertson and Mortimer JJ (“Singh”)).

7. In Singh, the Full Court of the Federal Court referred to the inference drawn in Li that, because the Court could not identify how the decision was arrived at, the exercise of the power by the Tribunal in refusing a discretion in certain circumstances was characterised as “lacking” an “evident and intelligible justification” (at [44]). In support, the Full Court of the Federal Court referred to Gageler J in Li at [105] as follows:

   “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason". Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" - .

8. The Full Court of the Federal Court in Singh  stated as follows:

   “45. In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359–360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

   46. There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal.”

9. In the case before this Court, the MRT’s reason for the exercise of its power to refuse an adjournment was because the Applicant could not satisfy PIC 4020. However, as stated above, in refusing the further time requested, the Applicant was denied the opportunity to present evidence that she had received a favourable TRA assessment as a cook and may therefore satisfy reg.1.03 of the Regulations; and that therefore PIC 4020(1) should be waived because there are compelling circumstances that affect the interests of Australia in the availability of the Applicant to be employed as a cook.

10. In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] (“Pandey”), Wigney J provided a useful summary as to when the unreasonableness of a decision to refuse to grant an adjournment can be characterised as legal unreasonableness. That summary is as follows:

    “41. The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:

    (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

    (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

    (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

    (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

    (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

    (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

    (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s.363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

    (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].

    (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

    (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].”

11. Certainly, all the authorities note that it is not legally unreasonable to decide that in appropriate cases “enough is enough” (see Li at [82] and Pandey at [41(i)]). However, there was no such reasoning in the case before this Court. However, the MRT is under a duty to review decisions within a reasonable time (see Li at [102] and Pandey at [41(i)]).

12. In the circumstances of this case, the MRT had evidence before it that the Applicant’s application for a second skills assessment had been received by the TRA and was likely to be completed within 30 days of receiving the Applicant’s evidence, which the letter made clear had been received. The MRT also had the statement by the Applicant’s migration agent that the qualifications of the Applicant were expected to be assessed as suitable by the TRA and that the skills assessment would be successful. That evidence was necessary for the Applicant to be able to make submissions that PIC 4020(1) should be waived pursuant to PIC 4020(4) because there may be compelling circumstances that affect the interests of Australia by the Applicant’s ability to be employed as cook.

13. To my mind, the facts in this case are at least as strong as those in Li.

14. In relation to the statutory regime governing the conduct of the review by the MRT, the scope of natural justice and procedural fairness is somewhat curtailed in Part 5 Division 5 of the Act, which expresses that Division to be an exhaustive statement of the natural justice hearing rule. However, s.363(1)(b) of Division 5 makes express provision for the exercise of discretion by the MRT, inter alia, to adjourn the review from time to time.

15. The applicant had not had a second failed assessment at the time she requested further time to allow her second assessment to be completed. The MRT hearing took place on 27 August 2013 and the applicant was given until 10 September 2013 to provide any further evidence. Her request, supported by the TRA letter (dated 4 September 2013), was made orally and in writing on 9 September 2013. The MRT handed down its decision on 13 September 2013, refusing the applicant’s request for further time.

16. The applicant’s request to the TRA for a further assessment was made promptly following the MRT hearing. The evidence before the MRT was that there would be an outcome of the second TRA within a matter of 3 or 4 weeks. According to the TRA letter dated 4 September 2013, the applicant had provided her evidence in support and most applications were assessed within 30 days of receipt of the evidence in support. Not to allow the applicant that time which may have provided her with evidence to support a submission as to why PIC 4020(1) should be waived was unreasonable to the point of being capricious and arbitrary and satisfies the stringent test of legal unreasonableness.

17. In the circumstances, I am satisfied that the decision of the MRT does not have an evident intelligible justification, is plainly unjust and is otherwise arbitrary, capricious and abandons common sense. Accordingly, the unreasonableness of the MRT in refusing to grant the applicant further time to provide evidence that was clearly underway and would be available in a relatively short period of time can be characterised as legal unreasonableness.

18. The MRT has fallen into jurisdictional error and its decision should be set aside and the matter remitted to the MRT for determination according to law.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  17 April 2015