Minister for Immigration and Citizenship v Li

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Bell JJ.,Gageler J
• Judgment Date: 08 May 2013
• Neutral Citation: [2013] HCA 18,2013-0508 HCA D
• Docket Number: B68/2012
• Court: High Court
• Date: 08 May 2013

[2013] HCA 18

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Bell and Gageler JJ

B68/2012

Minister for Immigration and Citizenship

Appellant

and

Xiujuan Li & Anor

Respondents

Representation

J T Gleeson SC, Acting Solicitor-General of the Commonwealth with G R Kennett SC and A L Wheatley for the appellant (instructed by Clayton Utz Lawyers)

L Boccabella with W J Markwell for the first respondent (instructed by AJ Torbey & Associates)

Submitting appearance for the second respondent

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 349(1), 353, 357A, 360(1), 363(1)(b).

Minister for Immigration and Citizenship v Li

Immigration — Migration Review Tribunal — Review of decisions — Visa applicant sought review by Migration Review Tribunal (‘Tribunal’) of decision of Minister's delegate to refuse skilled residence visa — Section 363(1)(b) of Migration Act 1958 (Cth) gives Tribunal power to adjourn review of decision — Visa applicant requested Tribunal adjourn review until the outcome of a review of her skills assessment was finalised — Whether Tribunal's refusal to adjourn was unreasonable or plainly unjust.

Words and phrases — ‘fair and just’, ‘fair, just, economical, informal and quick’, ‘jurisdictional error’, ‘unreasonable or plainly unjust’, ‘unreasonableness’, ‘ Wednesbury unreasonableness’.

ORDER

Appeal dismissed with costs.

French CJ

Introduction

1 For the purpose of exercising its function of reviewing certain visa refusal decisions under the Migration Act 1958 (Cth) (‘the Act’), the Migration Review Tribunal (‘the MRT’) is given a variety of powers and discretions. One such power is to adjourn the review 1. In this case, the MRT made a decision, on 25 January 2010, adverse to the first respondent, who had been training and obtaining work experience as a cook and had been refused a Skilled-Independent Overseas Student (Residence) (Class DD) visa. As was known to the MRT when it made its decision, the first respondent was awaiting the outcome of a requested review by Trades Recognition Australia (‘TRA’) of the first respondent's unsuccessful application to that authority for a skills assessment. A favourable skills assessment was a necessary condition of the grant of the kind of visa which she sought. The MRT did not accede to a request from the first respondent's migration agent to defer its determination pending TRA's decision.

2 The case has a history dating back to the initial application for a visa on 10 February 2007. The decision of the MRT was quashed by the Federal Magistrates Court 2 (‘the FMC’) on 31 August 2011 by an order in the nature of certiorari and the matter remitted to the MRT by an order in the nature of mandamus. An appeal from the decision of the FMC was dismissed by the Full Court of the Federal Court on 24 May 2012 3. The Minister for Immigration and Citizenship (‘the Minister’) now appeals, by special leave 4, to this Court on the basis that, contrary to the conclusions of the FMC and of the Full Court, the MRT did not act unreasonably in making its decision and did not fail to apply such requirements of procedural fairness as were imposed on it by the Act. For the reasons that follow the appeal should be dismissed.

The procedural history

3 The events leading to this appeal are discussed in detail in the reasons for judgment of the plurality 5. Salient features of that procedural history are:

• • The first respondent applied for a Skilled-Independent Overseas Student (Residence) (Class DD) visa on 10 February 2007 which required satisfaction of a ‘time of decision criterion’ set out in cl 880.230(1) of Sched 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), namely that:

  ‘A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular.’

  The application was supported by a skills assessment made on 8 January 2007 by TRA, a relevant assessing authority. The assessment was found to be based on false information submitted to TRA by the first respondent's former migration agent and on 13 January 2009 the Minister's delegate refused the application for a visa.

• • The first respondent, through a new migration agent, applied to the MRT for review of the delegate's decision on 30 January 2009. The migration agent submitted a fresh application to TRA for a new skills assessment on 4 November 2009.

• • The MRT convened a hearing for 18 December 2009 and on 21 December 2009 wrote to the first respondent inviting comment upon allegedly untruthful answers given to departmental officers in connection with her initial application. It required a response by 18 January 2010, but advised the first respondent that she could seek an extension of time.

• • On 18 January 2010, the first respondent's migration agent replied to the MRT's letter of 21 December 2009 and advised that the application for a second skills assessment had been unsuccessful. The migration agent pointed out ‘two fundamental errors’ in TRA's assessment and said that the first respondent had applied to TRA for review of its adverse decision. The migration agent requested the MRT to ‘forbear from making any final decision regarding her review application until the outcome of her skills assessment application is finalised.’ He undertook to keep the MRT informed of the progress of the application.

• • On 25 January 2010, without waiting for advice of the outcome of the migration agent's representations to TRA, the MRT affirmed the delegate's decision 6. It acknowledged the agent's last letter. It did not explain its decision to proceed to a determination beyond saying 7:

  ‘The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority's assessment.’

The FMC and Federal Court decisions

4 The first respondent applied to the FMC for judicial review of the MRT decision primarily on the ground that the MRT had failed to accord her procedural fairness when it refused to defer making its decision until after the outcome of her agent's request for a review by TRA of her skills assessment 8. However, the Federal Magistrate hearing the application decided it in favour of the first respondent on the basis that ‘the Tribunal's decision to proceed in [the] circumstances rendered it unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense.’9

5 In their joint judgment dismissing the Minister's appeal to the Full Court of the Federal Court, Greenwood and Logan JJ correctly described the review function conferred on the MRT as its ‘core function’ and said 10:

‘The MRT is given power to adjourn proceedings from time to time … An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of the Constitution.’ (emphasis in original)

Their Honours also concluded that an unreasonable refusal of an adjournment would mean that the MRT had not conducted its review function in a way which was ‘fair’, that being a requirement of ss 353 and 357A(3) of the Act 11. In so

concluding, they invoked observations in Minister for Immigration and Citizenship v SZGUR12 referring to s 353 as imposing a ‘requirement’ on the MRT 13. As appears later in these reasons, their Honours seem to have taken more from that observation than it conveyed.

6 Their Honours observed correctly that the migration agent's letter to the MRT of 18 January 2010 disclosed every reason to conclude that the second skills assessment was adverse because of error on the part of TRA 14. They held that ‘there was no countervailing consideration on the basis of which it might be concluded that the refusal to adjourn was one reasonably open to the MRT.’15

7 Collier J held that the MRT had failed properly to consider the first respondent's application for an adjournment and that that failure constituted a failure to give her a proper hearing within the meaning of s 360 of the Act 16. Her Honour, however, did not agree that issues relevant to the adjournment could be linked to Wednesbury unreasonableness 17.

The grounds of appeal

8 The Minister asserted in his notice of appeal that the plurality in the Full Court had erred in holding that ss 353 and 357A(3) of the Act imposed statutory requirements capable of supporting substantive grounds of review for jurisdictional error or defined the ‘core function’ of the MRT in such a way as to include procedural requirements additional to those imposed by Div 5 of Pt 5 of the Act. The Minister also attacked the finding that principles of procedural fairness arising under the general law applied in addition to the express statutory requirements imposed on the MRT. The Minister challenged the findings of the Full Court that the relevant standard of procedural fairness had not been met in

the circumstances and that the MRT's refusal of an adjournment was a decision that no reasonable tribunal could have made. The grounds of appeal direct attention to the nature of the functions conferred by the Act on the MRT.

The functions and powers of the MRT

9 The MRT is established by Pt 6 of the Act 18. Part 5 of the Act provides for ‘review’ by the MRT of a range of decisions under the Act defined as ‘MRT-reviewable decisions’ 19. They include decisions of the kind in issue in this case — that is, a decision to refuse to grant a...