Minister for Immigration and Citizenship v Li [2012] FCAFC 74

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Li [2012] FCAFC 74 Citation: Minister for Immigration and Citizenship v Li [2012] FCAFC 74

Appeal from: Minister for Immigration and Citizenship v Xiujuan Li [2011] FMCA 625

Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v XIUJUAN LI and MIGRATION REVIEW TRIBUNAL

File number: QUD 300 of 2011

Judges: GREENWOOD, COLLIER AND LOGAN JJ

Date of judgment: 24 May 2012

Catchwords: MIGRATION – consideration of whether the Migration Review Tribunal's (MRT) refusal to adjourn proceedings before it so as to enable the applicant to address procedural errors on the part of a body called Trades Recognition Australia (TRA) in undertaking a "skills assessment" critical to the applicant meeting the visa criteria, was a refusal reasonably open to the MRT – consideration of whether the MRT's refusal, in all the circumstances of the case, constituted a failure to discharge the statutory review function on the footing that the refusal to grant the adjournment deprived the applicant of a meaningful hearing thus depriving the applicant of procedural fairness – consideration of whether an unreasonable refusal to adjourn the proceeding, in circumstances where, absent the adjournment, the applicant's application for review before the MRT was doomed to failure, gave rise to jurisdictional error as a denial of procedural fairness and a failure by the MRT to discharge its core statutory function of review – consideration of the authorities on the question of construction of ss 353 and 357A of the Migration Act 1958 (Cth) and the analogue of s 353, s 420 (in the application of that section to the Refugee Review Tribunal) - doubt expressed about whether the Full Court's description in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [15] of s 353 as an "exhortative provision" gives sufficient attention to the content of the description in earlier authorities