In concluding that no reasonable tribunal would have refused the adjournment request the primary judge found, 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”.

The Federal Courts have held that the Tribunals refusal to grant a short adjournment was unreasonable and stressed that it is critical that Tribunals act reasonably when reviewing cases.

The decision came in a case where the applicant requested from the Tribunal an adjournment to seek a review and re-mark of the applicant’s IELTs score. The applicant who failed several times to achieve the English proficiency standard for a sc485 application was also at the same time scheduled to sit several more IELTs tests.

However, 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 had sat the IELTS test several times.

The Federal Court however referred to the High Court’s decision in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 (Li) and noted that there is a presumption of law that Parliament intends an exercise of power to be reasonable.

The Federal Court concluded that:

• The Tribunal conducted the review on the basis that the first respondent should be able to sit an IELTS test after his application for review was lodged with the Tribunal. This is consistent with the principles set out earlier in Berenguel 264 ALR 417; [2010] HCA 8 at [24]-[27] and the Tribunal acting on the most up-to-date information.
• There was no evidence about any factual reason why the Tribunal needed to make a decision early.
• There was no prejudice to anyone from a short adjournment of the review.
• There was significant and inevitable prejudice to the Applicant if the adjournment were refused as the application for review would be doomed to failure.
• The refusal by the Tribunal to adjourn was not legitimately affected by policies of which the Court has no experience.

Finally, applying the decision in Li, the court held, "the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal’s conduct of the review to that point, to what was at stake for the [Applicant], and what [the Applicant] might reasonably have hoped to secure through a re-mark."

For the full decision please refer to: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0001