Singh v Minister for Immigration
[2013] FCCA 651
•3 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 651 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error – refusal to grant adjournment – procedural fairness and reasonableness in the exercise of a discretion. |
| Legislation: Migration Act 1958, ss.353, 357A, 360, 363, 474 Migration Regulations 1994, reg.1.15C, cl.485.215 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration v Li (2013) 297 ALR 225 |
| Applicant: | VIKRAM JEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 126 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 June 2013 |
| Date of Last Submission: | 13 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the second respondent quashing its decision dated 11 January 2013.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made on 20 April 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 126 of 2013
| VIKRAM JEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant, who is a citizen of India, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 23 June 2010. On 4 April 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirement in cl.485.215 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, Tribunal’s decision will be set aside and the matter remitted to be determined according to law.
Relevant legislation
Delegate’s decision
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.485.215 which requires that an applicant for a subclass 485 visa have “competent English”.
“Competent English” has the meaning given to it by reg.1.15C. At the time the applicant lodged his application reg.1.15C relevantly provided:
If a person applies for a General Skilled Migration visa, the person hascompetent Englishif the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or …
It is that version of the regulation which applies in this case.
Tribunal’s review
Section 353 of the Act provides:
353 Tribunal’s way of operating
(1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case.
Section 357A of the Act relevantly provides:
357A Exhaustive statement of natural justice hearing rule
(1)This Division [div.5 of pt.5] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Section 360 of the Act is found in div.5 of pt.5 and relevantly provides:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
The Tribunal’s power to adjourn a review is found in s.363(1)(b) of the Act, which is also in div.5 of pt.5 and relevantly provides:
(1)For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time; …
Background facts
Primary application
As noted earlier, the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 23 June 2010. In his application form the applicant did not answer the questions relating to his English language proficiency. On 11 January 2012 and 16 March 2012 a delegate of the Minister wrote to the applicant asking him to provide an International English Language Testing System (“IELTS”) test report. On 19 March 2012 the applicant provided the results of an IELTS test dated 9 February 2012 in which he scored 6.5 for listening, 4.5 for reading, 5 for writing and 7 for speaking.
On 4 April 2012 the delegate refused to grant the applicant a visa on the basis that he had not provided an IELTS test with a score of at least 6 for each of the four test components as prescribed by reg.1.15C and that, as a result, he did not meet the requirement of cl.485.215 of sch.2 to the Regulations.
Review application
The applicant’s migration agent provided the Tribunal with a written statement made by the applicant. In it the applicant stated that he had successfully completed his studies in Australia in English and had been living and working in Australia since June 2007. He stated that he understood that he had failed to provide evidence of competent English but believed that he had competent English and would be able to score 6 in each component of the IELTS test. The applicant stated that he had undertaken an IELTS test on 3 November 2012 and expected the results on 16 November 2012. He also stated that he had made bookings to undertake further IELTS tests on 17 November and 1 December 2012, with the results due on 30 November and 14 December 2012 respectively. The applicant requested that the Tribunal wait until 14 December 2012 before making its decision.
The applicant’s migration agent also provided the Tribunal with:
a)a written submission which essentially repeated the claims made in the applicant’s written statement;
b)an IELTS test report from a test sat on 24 September 2011 in which the applicant scored 6.5 for listening, 5.5 for reading, 6 for writing, and 5.5 for speaking; and
c)receipts for IELTS test bookings for 17 November 2012 and 1 December 2012.
At a hearing on 9 November 2012 the Tribunal agreed to wait until 31 December 2012 to receive the results of the applicant’s IELTS tests booked for 17 November 2012 and 1 December 2012 before making its decision. In its decision the Tribunal recorded that it had said:
The Tribunal indicated [to the applicant at the hearing] it would not agree to wait for further evidence after that date, as he made his visa application 2 years before and he [had] had many opportunities to sit several English language tests.
On 1 January 2013 the applicant faxed to the Tribunal the results of those IELTS tests. For the test he sat on 17 November 2012 the applicant scored 6 for listening, 5 for reading, 5 for writing and 6 for speaking and for the test he sat on 1 December 2012 he scored 5 for listening, 6 for reading, 6 for writing and 6 for speaking. In his covering letter, the applicant stated that he intended to apply for a re-evaluation of the test he sat on 1 December 2012 and implicitly asked the Tribunal to postpone making its decision. On 3 January 2013 the Tribunal wrote to the applicant and informed him that it had considered his request but declined to grant him additional time.
The Tribunal’s decision and reasons
The Tribunal was not satisfied that the applicant had competent English within the meaning of reg.1.15C and therefore found that he did not meet the requirement of cl.485.215 of sch.2 to the Regulations. In this connection, the Tribunal noted the applicant’s results for four IELTS tests he had undertaken and was not satisfied that the applicant had achieved, in a test conducted not more than two years before he lodged his visa application, an IELTS test score of at least 6 for each of the four components of speaking, reading, writing and listening.
The Tribunal found that although the applicant had indicated that he intended to seek a re-evaluation of the IELTS test which he had taken on 1 December 2012, he had not provided any documentary evidence that he had actually made the application. The Tribunal was of the view that, having made his visa application in June 2010 and having sat the IELTS test several times, the applicant had had a reasonable period of time to obtain evidence of competent English. It said that it had therefore decided to proceed to make its decision.
The Tribunal acknowledged the applicant’s submission that he had been able to complete his studies in Australia in English and had lived and worked in Australia since 2007 but noted that it did not have any discretion to waive the requirement that he have competent English.
Proceedings in this Court
Application
In the application commencing these proceedings the applicant alleged:
1.That on 01/01/2013 I faxed to the Tribunal results of my IELTS tests taken by me on 17 November 2012 and 1 December 2012 (the Tribunal had agreed, during my personal hearing, to accept the results of above tests in deciding my English Language ability) and further requested to the Tribunal that although I haven’t been successful in obtaining 6 in each in IELTS test taken be [sic] me on 1 December 2012 but on the basis of my performance I think I should have obtained 6 in each in the IELTS taken by me in that particular IELTS test i.e. taken be [sic] me on 1 December 2012 and thus I am going to apply for re-evaluation of the test I sat on 1 December 2012 and I further requested to the Tribunal to grant me additional time to apply for re-evaluation of this result and hence wait for re-evaluation result to come. But on 3/1/2013 the Tribunal sent a letter to my representative and declined to grant me any additional time. I believe that the Migration Review Tribunal has fell into jurisdictional error by declining me additional time to apply for re-evaluation of the IELTS tests taken by me on 1 December 2012 and then wait for the result of that re-evaluation and thus in making this finding that I didn’t meet the requirements of clause 485.215. Its failure to provide additional time to me to apply for the re-evaluation of the result of the test taken me on 01/12/2013 (when the Tribunal has previously, during my personal hearing, agreed to provide me the time to submit the result of that particular IELTS test i.e. the one taken by me on 01/12/2012) involved a denial of procedural fairness.
Although the application was based on an allegation that the applicant had been denied procedural fairness, the Minister’s submissions also addressed the possibility that the Tribunal’s refusal to delay its decision on the review was unreasonable in the sense discussed in Minister for Immigration v Li (2013) 297 ALR 225.
Minister for Immigration v Li
In Li’s case the applicant, Ms Li, sought a visa which required as a criterion for its grant, and one which had to be satisfied at the time of the decision on the visa application, that Trades Recognition Australia (“TRA”) have assessed her relevant skills as being at a particular level. Her visa application was unsuccessful before the delegate because the TRA skills assessment she had obtained had been based on information that was not genuine. She then sought a review by the Tribunal of the delegate’s refusal. After a hearing before the Tribunal, Ms Li received a second but unfavourable skills assessment from the TRA which she considered was flawed and which she asked the TRA to reconsider on certain identified grounds. She asked the Tribunal to delay its decision on her review until the TRA reconsideration was concluded. The Tribunal refused the adjournment because it was of the view that Ms Li had already had sufficient opportunity to present her case and was thus unwilling to delay its decision on the review “any further”.
French CJ
French CJ referred to ss.357A and 360 of the Act. Section 357A provides that div.5 of pt.5 of the Act is to be taken as an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals and that, in applying those provisions, the Tribunal is to act in a way that is fair and just. In general terms, unless the Tribunal concludes on the papers that it will decide the review in an applicant’s favour, s.360 requires it to invite the applicant to appear before it and to ensure that the invitation provides the applicant with a real chance to present his or her case. Both of those sections are located in div.5 of pt.5 of the Act.
His Honour observed that div.5 of pt.5 does not deal with the matter of an applicant’s application for adjournment in order to provide additional material but that the common law hearing rule of procedural fairness does apply to the process for making a decision on such a request. In this regard his Honour observed:
Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to “the rules of reason”. His Honour, paraphrasing Sharp v Wakefield, said:
… a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.
Mason J in FAI Insurances quoted Kitto J and linked his words to the general rule “that the extent of … discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment”. (at 235 [24]) (references omitted)
The Chief Justice went on to say that officials’ discretionary decisions must be reached by reasoning which is intelligible and reasonable as well as directed towards, and related intelligibly to, the purpose of the power.
His Honour observed that a decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power because it falls outside the framework of rationality required by “the rules of reason” which are an essential element of lawfulness in decision-making. That framework may also apply to specific requirements of a procedural or substantive character, depending on the subject matter, scope and purpose of the statute. Relevantly, a failure to accord to a person to be affected by a decision a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.
His Honour said:
In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”.
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. 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. (at 237-238 [27]-[28]) (references omitted)
The Chief Justice held that a reasonable opportunity to present an applicant’s case with respect to a “time of decision” criterion will extend to the opportunity to obtain evidence of the necessary fact or to obtain the necessary opinion or assessment. His Honour held that the Tribunal’s decision to refuse Ms Li’s request for an adjournment was arbitrary because it had concerned itself with the alleged sufficiency of the opportunities she had had to present her case and did not give any indication that it had turned its mind to a number of factual issues and legal considerations of relevance to that decision. His Honour held that the Tribunal had denied Ms Li procedural fairness in making its decision to refuse her request for an adjournment and that that refusal constituted jurisdictional error because she was thereby denied a reasonable opportunity to present her case with respect to the relevant “time of decision” criterion by being denied the opportunity to obtain the necessary assessment.
Hayne, Kiefel and Bell JJ
The leading judgment in Li’s case was that of Hayne, Kiefel and Bell JJ who noted that a denial of procedural fairness may result in a decision which is affected by jurisdictional error and that failure to accede to a reasonable request for an adjournment can constitute unfairness.
Their Honours observed that if the Tribunal denied an applicant a real chance to present his or her case then that might be a breach not only of s.360 but also of s.357A(3). However, their Honours also stated that it was not necessary to determine what s.357A(3) requires when it says that the Tribunal must act in a way which is fair and just, or what might be the consequences of a breach of that sub-section, and that although it might be concluded, if Ms Li had not been provided with an opportunity to present her case, that the hearing contemplated by s.360 had not taken place, there was a more direct route to the resolution of the appeal.
The plurality held that because s.363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is relevantly derived from a presumption that it will be exercised reasonably. The legal standard of reasonableness will be indicated by the true construction of the statute because the matter in issue is whether the statutory power has been abused. That legal standard of unreasonableness is not limited to cases where a decision at which no reasonable person could have arrived has been made but also includes the more specific errors, going to jurisdiction, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations and failing to take into account relevant considerations. Because unreasonableness is a conclusion which may also be applied to a decision which lacks an evident and intelligible justification, a court may also infer, by reference to the facts and matters falling for consideration in the exercise of a statutory power, that a decision is unreasonable even though a particular error in reasoning cannot be identified.
In Li’s case, the plurality stated that the Ms Li’s request for an adjournment of the review pending the TRA’s reconsideration of its skills assessment must have conveyed to the Tribunal that she did not consider that she had presented her case. Their Honours stated that, in deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s.360. Their Honours stated that, in the context of that case, it was not apparent that the Tribunal’s decision, that the applicant had had enough opportunities to present her case, was reached having regard to the facts and the statutory purpose to which the discretion to adjourn is directed. Relevantly, the Tribunal had not suggested that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. Their Honours said that, in those circumstances, it was not apparent why the Tribunal decided, abruptly, to conclude the review and that whatever particular error might have been made by the Tribunal, which could not be identified, the decision itself bespoke error. Their Honours concluded in this connection that the Tribunal could not have decided that the review be brought to an end if all relevant and no irrelevant considerations had been taken into account and regard had to the scope and purpose of the Act. Because error was inferred, it followed that the Tribunal had not discharged its function of deciding whether to adjourn the review according to law and, by not conducting the review in the manner required by the Act, had acted beyond its jurisdiction.
Gageler J
In a separate decision Gageler J observed that the parliament is taken to intend that a discretion conferred by statute be exercised reasonably. His Honour recorded that it is a principle of construction that the authority to make, inter alia, a discretionary decision pursuant to a statutory power must be exercised according to law and reason within limits set by the subject matter, scope and purpose of the statute in question. Reasonableness is to be presumed to be a condition of the valid exercise of a power or discretion conferred by statute unless there is an affirmative basis for its exclusion or modification.
In this connection, his Honour stated that nothing in the Act excludes the implication that the Tribunal is to act reasonably as a condition of its duty to review a decision or in the performance of its procedural fairness duties and the exercise of its procedural powers.
His Honour held that the Tribunal fails to perform its statutory duty to review a decision where, relevantly, the non-exercise of a procedural power is so unreasonable that no reasonable tribunal heeding the exhortations in ss.353 and 357A(3) to operate fairly and justly and according to “substantial justice and the merits of the case”, could have done what the Tribunal did and that that unreasonableness was material to the outcome of the review. Relevantly, 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.
His Honour said:
The MRT fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so. The MRT fails to comply with requirements essential to the valid performance of that duty and to the valid exercise of that power where, having considered the exercise of that power, the MRT fails to exercise that power so as to adjourn the review in circumstances where no reasonable tribunal could fail to adjourn the review. If an unreasonable failure to adjourn is material to the outcome, such decision as the MRT goes on in fact to make on the review is invalid. The MRT’s “ostensible determination” of the review by making the decision “is not a real performance of the duty imposed by law upon [it]”. (at 256 [103]) (references omitted)
His Honour held that the Tribunal’s decision was not reasonable because, when all the relevant facts were taken into account, no reasonable Tribunal, seeking to act in a way which was fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.
Submissions
The applicant made no substantive submissions in support of his application and relied on his application and affidavit in support. In substance the affidavit repeated the allegation set out in the application.
The Minister submitted that in Li’s case error was inferred because there was no evident or intelligible justification for the refusal of the adjournment. He argued that such circumstances did not apply in this case and that it was possible to identify a rational and intelligible justification for the Tribunal’s refusal to adjourn the review. In this regard, he identified the following matters:
a)unlike in Li’s case, the present applicant did not advance any argument which rationally suggested that the re-evaluation of his 1 December 2012 IELTS test would assist him;
b)there was nothing to suggest that the applicant’s expressed hope that the re-evaluation would be favourable to him had any foundation. Reference was made to the applicant’s history of unsuccessful IELTS tests; and
c)there was no evidence to the effect that the re-evaluation had in fact been favourable to the applicant.
The Minister submitted that, given those matters, it was rational and reasonable for the Tribunal to have concluded that “enough was enough”.
The Minister further submitted in this connection that the Tribunal had not focused solely on the opportunities the applicant had had to present his case, as had been the case in Li, because it placed importance on the fact that the applicant had:
a)sat the IELTS tests on a number of occasions without achieving the necessary scores; and
b)had failed to supply any documentation confirming that an application for re-evaluation had been made.
The Minister argued that it could not be suggested that the Tribunal had prevented the applicant from having a reasonable opportunity to present evidence in support of his case, noting that it had already given him an extension of time within which to sit further IELTS tests.
The Minister also observed that the applicant would have received the results of the 1 December 2012 IELTS test by about 14 December 2012 but had not provided them to the Tribunal, or sought an adjournment of the review pending a re-mark, until 1 January 2013. Reference was also made to the decision of the Full Court of the Federal Court in Li’s case.
Consideration
The applicant’s allegation was of a denial of procedural fairness. However, it is appropriate also to consider whether the refusal of the requested adjournment was unreasonable in the sense discussed in Li’s case.
In its reasons the Tribunal explained in the following terms its decision to refuse the applicant’s request for an adjournment:
On 1 January 2013 the applicant indicated he intended to seek a re-evaluation of the IELTS test he sat on 1 December 2012 however he did not provide any documentary evidence that he had actually made that application. The Tribunal decided to proceed to make its decision because it formed the view the applicant has had a reasonable period of time to obtain evidence of competent English – he made his visa application in June 2010 and he has sat the IELTS test several times.
That passage should be understood in light of the fact that the applicant had advised the Tribunal that the results of his 1 December 2012 IELTS test were due on 14 December 2012. The point the Tribunal was making in the above passage was that although the applicant had had time to seek a re-mark of his 1 December 2012 test before he wrote on 1 January 2013 he had not done so. The conclusion which the Tribunal reached was that it was not appropriate to grant the adjournment sought because the applicant had had a reasonable period of time to obtain evidence of competent English in that the visa application in question had already been on foot for two and a half years and he had already had sufficient opportunities to establish English language proficiency through the IELTS process.
One basis of the Tribunal’s decision to refuse the adjournment request was its view that the applicant’s failure to seek a re-mark as soon as he received his 1 December 2012 results would mean, were the adjournment granted, an unduly protracted resolution to its review of the visa application. Absent other considerations, I would not have concluded that no reasonable tribunal would have made that decision. However for reasons given below, that is not the conclusion that I have reached.
The other basis of the Tribunal’s decision on the adjournment request was the fact that the applicant had sat the IELTS test “several times”.
When giving the applicant time to submit to it the results of his November and December 2012 IELTS tests, the Tribunal implicitly acknowledged that to proceed to a decision on the review before the applicant had had an opportunity to sit those tests and to obtain their results would have denied him a real chance to present his case. It is therefore difficult to understand why the Tribunal would later deny the applicant the opportunity to place before it a potentially more accurate assessment of his English language skills than was first issued in relation to the 1 December 2012 IELTS test. Whether the original results were revealed to be incorrect as a result of a re-mark is unknown because no evidence on that question was adduced. On 3 January 2013, when it refused the adjournment request, the Tribunal was similarly in no position to determine that question. Significantly, in its reasons the Tribunal expressed no view on whether the request for a re-mark was futile or whether the applicant might indeed have demonstrated competent English on 1 December 2012. Nor did it refer to the matters raised in these proceedings by the Minister and referred to above at [39]. The Tribunal limited its apparent reasoning on this aspect of the issue to the fact that the applicant had sat the IELTS test “several times”. However, that reasoning did not acknowledge that the applicant was not seeking to sit a further test but to, he hoped, submit a re-marked, more accurate and more advantageous result of a test he had already sat.
As in Li’s case, Mr Singh’s request for an adjournment of the review pending a re-mark of his IELTS test must have conveyed to the Tribunal that he did not consider that he had presented his case. In deciding whether or not to adjourn, the Tribunal had to consider that issue in the context of the statutory purpose of s.360 of the Act. Its decision gives no suggestion that it did so or, specifically, that it considered that the effect of its decision would be to deny the applicant an opportunity to submit the correct result of a test which the Tribunal had itself decided he should have the opportunity to sit before it made its decision on the review. The Tribunal also does not appear to have considered that refusing the adjournment might have meant that the result on which it would therefore base its decision was not accurate.
As the plurality said in Li’s case:
… [the Tribunal] 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. (at 251 [82])
Given the applicant’s s.360 entitlement to be able to present his case, the agreement that the applicant could sit the 1 December 2012 IELTS test and also the possibility that the test result on which the Tribunal proposed to rely was inaccurate, the Tribunal’s decision that the applicant should not be able to submit test results corrected following a re-mark lacked an evident and intelligible justification. Consequently, it was unreasonable of the Tribunal to include amongst its reasons for refusing the adjournment the fact that the applicant had sat the IELTS test “several times”.
Moreover, the decision to refuse the adjournment request affected the quality of the applicant’s hearing before the Tribunal. It did so because, as in Li’s case, the applicant was denied a reasonable opportunity to put his case to the Tribunal. The applicant was entitled to put before the Tribunal the most accurate information available to him which, relevantly, might have included a re-marked assessment of his 1 December 2012 IELTS test. The Tribunal had given him time to sit the test and to submit its results. The 31 December 2012 deadline for submitting those results was not unreasonable at the time it was made but once the applicant indicated that he hoped to get a better result following a re-mark, which was not a fanciful hope given his previous results, it became an artificial barrier to the applicant putting the entirety of his case. Because the Tribunal, by its refusal to adjourn its review, denied the applicant the opportunity to complete his case on the review, by effectively preventing him from submitting what would potentially be a more accurate assessment of his English language skills on 1 December 2012 than had already been supplied, the Tribunal denied him the real and meaningful hearing impliedly provided by s.360 of the Act.
In such circumstances, the Tribunal’s decision to refuse the adjournment request by reference to the consequent delay to the conclusion of the review was one which no reasonable tribunal with a proper understanding of the Tribunal’s obligations under s.360 of the Act would have made.
For these reasons, I find that the exercise of the Tribunal’s discretion whether to adjourn the review miscarried and that by not discharging its function of deciding whether to adjourn the review according to law and by not conducting the review in the manner required by the Act it acted beyond its jurisdiction.
Conclusion
The Tribunal’s decision on the applicant’s review was affected by jurisdictional error.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 3 July 2013
CORRECTIONS
Paragraph 48 line 18 – delete “[38]” and insert “[39]”.
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