Minister for Immigration and Citizenship v Li [2013] HCA 18: Refusal to Adjourn Review

The High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (judgment delivered 8 May 2013) has dismissed unanimously an appeal from a decision of the Full Federal Court, which held that a refusal by the Migration Review Tribunal ("the Tribunal") to adjourn review proceedings was unreasonable.

Background

The first respondent (Ms Xiujuan Li) had been refused a “skilled overseas student residence visa” by the Immigration Department (the Department) on the basis that some of the employment history she had provided to support the assessment of her relevant skills was not genuine.

Ms Xiujuan Li applied to the Tribunal for a review of the Department’s decision and also applied for a fresh skills assessment. Upon that assessment being obtained, Ms Xiujuan Li's migration agent informed the Tribunal that it was unfavourable explaining that because fundamental errors had been made in it, but however; Ms Xiujuan Li was confident of succeeding on her application to the assessing authority for a review. 

On this basis the migration agent requested the Tribunal delay making a final decision on Ms Xiujuan Li's review application until the skills assessment review was finalised. This request was refused by the Tribunal as it considered that Ms Xiujuan Li had been given enough opportunity to present her case and it was not prepared to delay the matter any further. 

The Tribunal went on to find that, because the first skills assessment had been affected by fraud, the relevant visa criterion were not met and the Department's decision was affirmed.

Subsequently Ms Xiujuan Li was successful in an application for review of the Tribunal's decision by the Federal Magistrates Court (now the Federal Circuit Court of Australia) which considered that the Tribunal's decision to proceed was unreasonable in circumstances where the review of the second skills assessment was the only outstanding matter and where it could be inferred that Ms Li was not attempting to deliberately delay a decision in her case.

The Minister then appealed to the Full Court of the Federal Court which unanimously dismissed the appeal holding that the Tribunal had exercised its discretion to adjourn, pursuant to Migration Act 1958 (Cth) s 363(1)(b), in an unreasonable manner.

The Minister appealed by special leave to the High Court.

Result

In considering whether the Tribunal's refusal to adjourn was “unreasonable or plainly unjust”. The High Court held that the Tribunal's exercise of the discretion under s 363(1)(b) was unreasonable. The Tribunal's reasons failed to identify any consideration weighing in favour of the abrupt conclusion it brought to the review and none had been suggested on appeal by the Minister.
  
The failure by the Tribunal to discharge its function under s 363(1)(b) according to law meant that the Tribunal had acted beyond its jurisdiction in affirming the delegate's decision.

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