Federal Court: Due to s 500(6L), AAT had only 84 days to decide whether to affirm delegate's decision. Applicant asked for adjournment in order to obtain representation. AAT's refusal to adjourn was legally unreasonable. With respect, in answering whether that error was material, did the FCA echo what the writer had written in an article dated 5 Oct 2019: "is it not the case that it is not possible to rule out that the placing of even more weight to [a consideration] could have tipped the scales in favour of revocation?"
The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on character grounds.
The Applicant sought revocation of that cancellation, but a delegate of the Minister decided not to revoke cancellation of his visa.
The Applicant then applied to the Tribunal (AAT) for merits review of the delegate's non-revocation decision.
As it was not in dispute that the Applicant did not pass the character test, the only question to the Tribunal was whether there was another reason why the cancellation should be revoked, pursuant to s 501CA(4).
The hearing was scheduled for 17 and 18 April 2019. On 1 April 2019, the Applicant emailed the AAT, asking for the hearing to be adjourned for 3 weeks, so that he could instruct a practitioner to represent him.
The Tribunal responded by email the same day as follows:
The Tribunal is unable to vacate the hearing currently listed for 17 and 18 April 2019. As the matter is a review of a decision under section 501 of the Migration Act 1958 (Cth) not to revoke a decision to cancel your visa, the Tribunal is required under s 500(6L) of the Migration Act to make a decision within 84 days. As you lodged your application with the Tribunal on 8 February 2019, the 84th day will be 3 May 2019. As a result, the Tribunal is unable to grant a three week adjournment. In addition, the Senior Member assigned to hear and decide the matter is full booked up (sic) to 3 May 2019 and is therefore unable to find another day to hear the matter.
The hearing proceeded as scheduled on 17 April 2019, but the Applicant had managed to obtain representation only the day before, with the result that the representative was not able to present further evidence in support of the Applicant's case.
The Tribunal affirmed the delegate's non-revocation decision. In weighing whether there was another reason why the cancellation should be revoked, the Tribunal accepted that there may be "significant [financial] impediment to the applicant, his partner and her family if the applicant is removed", which weighed in favour or revocation.
However, the Tribunal ultimately gave more weight to considerations that favoured non-revocation and affirmed the delegate's non-revocation decision.
The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.
The FCA's accepted the Applicant's argument made in the course of judicial review that, had the Tribunal adjourned the hearing, the Applicant would have been able to provide evidence in support of his case, including evidence that would make even stronger the claim of "significant [financial] impediment to the applicant, his partner and her family if the applicant is removed".
The questions to the FCA were as follows:
Question 1: Was the refusal of the Applicant's request for adjournment legally unreasonable?
Question 2: If the answer to Question 1 is "yes", was the refusal of the Applicant's request material to the decision? In other words, was that error jurisdictional?
Question 3: In answering Question 2, can it be said that, given that the Tribunal had already given the "significant [financial] impediment to the applicant, his partner and her family if the applicant is removed" strong weight in favour of revocation, to give the Applicant an opportunity to submit evidence going to that same matter could not have made a difference to the outcome of the Tribunal's decision?
Question 4: Can it be said that, if it was not possible for the Tribunal to adjourn the hearing for 3 weeks as requested, the Tribunal was not obliged to consider a shorter adjournment?
Question 5: Can it be said that "the applicant’s failure to ask for a further adjournment either before or at the hearing obviates the AAT’s error"?
The FCA answered those questions as follows:
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