Australian Immigration Daily News

Are their limits on the AAT’s power to refuse to grant an adjournment to allow additional information to be provided in support of a visa application?

And if there are limits to the AAT’s discretion, what are the limits?

So if the AAT refuses to grant an adjournment to allow further information to be submitted, and the AAT then affirms the refusal of the application, how do you know whether you have a case to take to the Federal Circuit Court?

We had a look at this issue last week in our review of the decision of the Federal Court in the case of Pathak v Minister for Immigration and Border Protection [2015] FCA 683 (21 May 2015). As our colleague at Migration Alliance, Chris Levingston pointed out in the comments to that article, the judgment in Pathak is “aligned” with the fairly recent decision of the High Court (May 2013) in Minister for Immigration and Citizenship v Li (2013) HCA 18.

So Chris’s comment led me to think that it would be useful to have a fresh look at the Li case, so readers of this blog can understand what the High Court said definitively about this question.

What were facts in the Li case?

The background of the case was that in 2007, the applicant had applied for what was then known as a “Skilled – Independent Overseas Student (Residence)” visa. At the time that she submitted her application, the applicant had obtained a skills assessment from the Trades Recognition Authority (“TRA”) for the occupation of a “cook”.

By her own admission, the applicant had not been employed at one restaurant where her application to the TRA indicated she had worked. It was the applicant’s claim that the information about her claimed employment at this restaurant had been provided to the TRA by her migration agent, without her knowledge. A delegate of the Minister had refused the application on the basis that the applicant had provided information that was not genuine.

The applicant then applied for review of this decision to the Migration Review Tribunal. This application for review was filed in January 2009.

In September 2009, the Tribunal sent a letter to the application which informed her that the submission of the false information had been relied on by the Department to refuse the application. The letter invited the applicant to comment on this issue. In reply, the applicant’s new migration agent sent a letter to the Tribunal which stated that the applicant had gained additional experience as a cook in the two year period since her application had originally been submitted. The letter from the new migration agent said that the applicant was awaiting the results of a second’s skills assessment from the TRA, and that if the results of this skills assessment were positive, it would enable the Tribunal to conclude that the applicant satisfied the skills requirement for the grant of the visa.

A hearing on the application for review was convened before the Tribunal in December 2009. After this hearing, the Tribunal sent another letter to the applicant inviting her to comment on matters that had been covered during the hearing. In response, the applicant’s migration agent wrote to the Tribunal to advise it that the second skills assessment had been received from the TRA, and that it had not been successful.

However, the migration agent claimed in this letter that the TRA had made errors when conducting this second assessment (by failing to take account the applicant’s experience at one place of employment, and by failing to follow its own procedures for contacting referees to verify the applicant’s employment). The agent requested that the Tribunal defer its decision on the application until the issues regarding the second skills assessment had been finalized.

However, the MRT refused to grant an adjournment. It concluded that “the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further”. It thus issued a decision on 25 January 2010 which affirmed the Department’s refusal of the application.

The applicant appealed from the MRT’s decision to the Federal Magistrates Court, and was successful. The case reached the High Court after the Minister had unsuccessfully appealed the decision of the Federal Magistrates Court to the Full Court of the Federal Court.

What did the High Court Decide?

The High Court ruled 5 – 0 in favour of the applicant, thus concluding that the Tribunal had committed jurisdictional error by refusing to grant an adjournment to the applicant. Although the judges who heard the case were in agreement about the result that should be reached, they were divided about the reasons for the outcome. It is thus the decision of the “plurality” of the High Court in Li (Judges Hayne, Kiefel and Bell) that provides the governing “authority” that provides guidance as to when the Tribunal must grant an adjournment to allow an applicant to provide additional information.

The essence of the “plurality” decision is that the Tribunal must exercise its discretion about whether to grant an adjournment “reasonably”. The “traditional standard” for defining what is “reasonable” has been the case of Associated Provincial Houses Ltd v Wednesbury Corporation”, where it was held that a decision is not reasonable when it is “so unreasonable that no reasonable person could have arrived at it”. The concept is known as “Wednesbury unreasonableness”.

However, in Li, the plurality of the High Court made it clear that “unreasonableness” is not limited to decisions that are irrational or bizarre. It stated that “unreasonableness” might be found where the decision maker has “committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally”.

So Exactly What Did the High Court Find to Be Unreasonable in the Li Case?

In Li, the plurality determined that the Tribunal had committed jurisdictional error by giving “too much weight” to the fact that the applicant had already had some opportunity to present some evidence and argument in support of her visa application, and too little weight to her need to present further evidence (in the form of the second skills assessment). It was also the plurality’s view that the Tribunal had failed to have regard to the purposes for which the discretion exists to grant an adjournment - namely to give the applicant a full and fair opportunity to present evidence in support of its case.

In the specific circumstances of the Li case, there was no suggestion that the second skills assessment that the applicant wished to present could not be obtained in the near future. In those circumstances, it was the view of the plurality that the Tribunal should not have abruptly concluded its review of the case, and should have given the applicant the opportunity to submit the additional information.

So What Does the Li case Tell Us About When An Applicant Is Entitled to An Adjournment?

Of course, the principle that the Tribunal must act “reasonably” when it decides whether or not to grant an adjournment is rather “vague” and “mushy”. Whether a decision of the Tribunal is “reasonable” or not is something that will depend on the very specific facts and circumstances of the case.

However, from reading Li, it does seem clear that it will be unreasonable for the Tribunal to refuse an adjournment when it can be established that the material which the applicant wishes to provide will definitely become available in a fairly short period of time. More generally, it seems that it can be argued that an adjournment must be granted when doing so is necessary to ensure that the applicant has a full and fair opportunity to present her or his case, or when refusing the adjournment will result in an outcome that clearly seems to be unfair or unjust.

Concordia Pacific. Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837