FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration and Border Protection [2018] FCA 2085

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    In March 2016, Mr Iqbal Hussain Khizer Mohammed, applied for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection. Mr Mohammed applied to the Administrative Appeals Tribunal for a review of that decision. That review application was unsuccessful. The Tribunal affirmed the decision to refuse to grant the visa to Mr Mohammed. Mr Mohammed then challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). The primary judge in the Circuit Court dismissed that application with costs. Mr Mohammed appealed to this Court from the decision of the primary judge.

2    As will be seen, the essential issue raised by Mr Mohammed’s appeal is whether the primary judge erred in not finding that the Tribunal failed to validly exercise its review jurisdiction by either failing to respond to a post-hearing email communication from Mr Mohammed, or failing to grant a further adjournment of the review application pursuant to a request which was said to be implicit in that communication.

background

3    Mr Mohammed, a national of India, first arrived in Australia on 17 August 2008 as the holder of a student visa. Since that time, Mr Mohammed has held various successive student visas. It would appear that, in the 10 years he has been in Australia, Mr Mohammed has completed some English language courses, a Diploma in Accounting, a Certificate III in Patisserie, and a Diploma of Business from various different education providers. He failed to finish a number of other courses.

4    On 14 March 2016, Mr Mohammed applied for a further student visa. One of the criteria for the grant of the visa at the relevant time was found in cl 573.231 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly, cl 573.231 provided as follows:

If subclause 573.223(1A) does not apply:

(a)    the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

(b)    the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

(i)    made under regulation 1.40A; and

(ii)    in force at the time the application was made.

5    Subclause 573.223(1A) sets out requirements for the grant of a visa for an “eligible higher degree student”. It is common ground that subcl 573.223(1A) did not apply to Mr Mohammed’s circumstances.

6    On 17 May 2016, a delegate of the Minister refused Mr Mohammed’s visa application. The basis for that decision was that the delegate was not satisfied that Mr Mohammed met the criterion in cl 573.223(1) in Schedule 2 to the Regulations. At the relevant time, cl 573.223(1) required a visa applicant to be a “genuine applicant for entry and stay as a student”.

the tribunal proceedings and decision

7    On 6 June 2016, Mr Mohammed applied to the Tribunal for a review of the delegate’s decision. On 20 March 2017, the Tribunal wrote to Mr Mohammed and invited him to appear at a hearing before it on 21 April 2017. That letter also relevantly stated (see Appeal Book “AB” 54):

Additionally, please provide this information so that a decision can be made as quickly as possible:

1.    A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

2.    Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

3.    Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

4.    An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

We will assess whether you intend genuinely to stay in Australia temporarily.

Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.

Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.

We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.

(Emphasis by bolding in original)

8    Mr Mohammed did not provide the statement or documents requested in that letter prior to the hearing in the Tribunal. Nor, as will be seen, did he provide documents relating to his enrolment in any course to the Tribunal at the hearing. It is readily apparent that the reason that he did not provide the Tribunal with any such documents was that he was not enrolled in any course and had received no offer of enrolment.

9    Mr Mohammed appeared before the Tribunal at the scheduled hearing on 21 April 2017.

10    In its Reasons, the Tribunal noted that, although the issue before the delegate was whether Mr Mohammed met the criterion in cl 573.223(1), the critical issue before it was whether he met the enrolment requirements in cl 573.231. As has already been noted, that was the critical issue because Mr Mohammed did not, either at or prior to the hearing, provide any evidence or information to the Tribunal that showed that he was enrolled in, or had received an offer of enrolment in, any course.

11    At the hearing, Mr Mohammed confirmed that he was not currently studying or taking any course. He said that the last course he had taken was a diploma of business. It would appear from the documents provided to the Department of Immigration and Border Protection by Mr Mohammed that he completed a Diploma of Business in February 2016. Mr Mohammed told the Tribunal that his plan was to complete a Bachelor of Business at the Holmes Institute of Business. The Tribunal then told Mr Mohammed that “to be granted a student visa, you have to have a current enrolment … confirmation of enrolment or an offer of enrolment”. Mr Mohammed stated that “they” (presumably the Holmes Institute) had given him an offer letter but “it was cancelled because it was too late”. He said that he would apply for a new offer letter. The Tribunal then questioned Mr Mohammed about why he wanted to complete a Bachelor of Business before he returned home.

12    At the conclusion of the hearing, the following exchange occurred:

MS BANFIELD: Okay. Okay. Is there anything else that you want to say about your application? Anything else you want to say about your application? All right. So I'm going to consider everything that you’ve told me today, and I will also take into account the papers that you’ve given me. Did you want to submit an offer of enrolment?

MR MOHAMMED: No.

MS BANFIELD: You don’t want to?

MR MOHAMMED: …..

MS BANFIELD: Because you’re not enrolled at the moment. To be granted a visa, you have to either be enrolled, or you have to have an offer of enrolment. Do you want to provide those documents after the hearing? Do you want to go to the college that you intend to enrol in?

MR MOHAMMED: Yes, yes, yes.

MS BANFIELD: You do? Okay. How long will it take you to provide that?

MR MOHAMMED: Very - in the next few - two - in the next month or – everyone …..

MS BANFIELD: All you need to do is go to the college and ask them to give you - - -

MR MOHAMMED: ….. offer …..

MS BANFIELD: An offer, like - just an offer. That’s all you need.

MR MOHAMMED: By the end of this week, I will be - I - - -

MS BANFIELD: So how about two weeks.

MR MOHAMMED: Okay, two weeks.

MS BANFIELD: Two weeks, yes.

MR MOHAMMED: …..

MS BANFIELD: Two, then. All right. So I will wait and give you that time to provide that document, and then I will make a decision based on all the evidence that you’ve provided, and you will receive the decision and also the reasons for the decision, and the Immigration Department is told about the outcome, as well. Okay?

MR MOHAMMED: …..

MS BANFIELD: All right. Thank you.

MR MOHAMMED: So where I have to submit the offer letter?

MS BANFIELD: Just to the registry, like - yes, however you have provided documents before, just that way. Either to the registry or by email.

MR MOHAMMED: Okay.

13    The following points may be noted concerning that exchange.

14    First, the Tribunal effectively granted Mr Mohammed an adjournment of two weeks.

15    Second, the adjournment was granted for a specific purpose. That specific purpose was to enable Mr Mohammed to furnish further evidence, in the form of a letter of offer of enrolment.

16    Third, in light of Mr Mohammed’s evidence during the hearing, the letter of offer which Mr Mohammed apparently intended to supply within the period of the adjournment was a letter of offer from the Holmes Institute of Business in respect of the Bachelor of Business in which he intended to enrol. That was the only prospective course that Mr Mohammed referred to in his evidence. Mr Mohammed did not refer to any other education provider that he intended to approach, or any other course that he intended to enrol in.

17    Fourth, Mr Mohammed effectively agreed that two weeks was sufficient time for him to provide that evidence. Indeed, he initially appeared to suggest that he could get the letter of offer within one week.

18    Fifth, Mr Mohammed was not invited to make any further submissions, or provide any other information or material to the Tribunal, other than the evidence relating to the offer of enrolment. He was not invited to engage in any further correspondence with the Tribunal.

19    On 26 April 2017, which was within the period of the two-week adjournment, Mr Mohammed wrote to the Tribunal by email. That email relevantly stated (see AB 69):

Thank you for giving me time and taking interview on 21 April 2017.

On that interview you have requested to provide me an offer letter/CoE from any provider and as per your instruction i have contacted with few provider. Every provider requested me show a written permission from AAT as i have no study permit/valid visa and due to this reason no one is agreeing to take me as student.

Can you please write an email to with your required papers which i can provide to provider to take admission?

20    The email also attached copies of a number of documents which appear to have been previously provided to the Department in support of Mr Mohammed’s visa application. Those documents related to courses that he had completed in the past.

21    The following points should be noted concerning this email.

22    First, it would appear that Mr Mohammed’s email was sent as a reply to an earlier email which the Tribunal had sent to Mr Mohammed on 20 March 2017. The earlier email was sent on behalf of the Registrar of the Tribunal. The email appears to have been sent to the Tribunal’s “National Registry Mailbox”. There would, therefore, appear to be no doubt that the email was sent to and received by the Tribunal, presumably in its Registry. Whether it was forwarded to the particular Tribunal member who was conducting Mr Mohammed’s review is another matter.

23    Second, it is readily apparent from the first sentence of the second paragraph of the email that, broadly speaking, Mr Mohammed understood the nature of the evidence which he had been given time to provide to the Tribunal. It should perhaps be noted, however, that, contrary to what Mr Mohammed said in the email, the Tribunal did not request Mr Mohammed to provide a letter of offer from “any provider”. When read in the context of Mr Mohammed’s evidence before the Tribunal, it is fairly apparent that the Tribunal gave Mr Mohammed time to provide a letter of offer from the one provider that Mr Mohammed had referred to in his evidence; the Holmes Institute of Business.

24    Third, Mr Mohammed did not indicate in his evidence at the hearing that he had been unable to get a letter of offer from the Holmes Institute of Business because he had been unable to “show a written permission from AAT”. Nor did he suggest that he was likely to have any difficulties obtaining a letter of offer. It should be reiterated, in that context, that Mr Mohammed had previously applied for, and been granted, student visas. It could not be said that he was a complete stranger to the process.

25    Fourth, having regard to the difficulties that Mr Mohammed apparently claimed to be having in obtaining a letter of offer, it seems fairly clear that he would not have been able to obtain a letter of offer and provide it to the Tribunal, either within the two-week period allowed or otherwise, if the Tribunal was not in a position to provide the email “permission” requested by him.

26    Fifth, despite Mr Mohammed’s apparent difficulties in obtaining evidence of an offer of enrolment, he did not, in terms, request additional time in which to provide that evidence.

27    The Tribunal did not respond to Mr Mohammed’s email. Instead, it proceeded to make its decision, albeit over three weeks after the end of the period of the adjournment. It made its decision on the basis of the evidence which was before it at that time, as it had in effect told Mr Mohammed that it would do.

28    The Tribunal did not refer to Mr Mohammed’s email, at least directly or expressly, in its Reasons. It simply stated (Reasons at [8]):

While in Australia the applicant has previously studied and completed English language and Business/Accounting courses. He also obtained a Certificate Ill in Patisserie and declared an intention to study a Bachelor of Business. At the time of the hearing, the applicant was not enrolled in a course of study and he requested a two week period post hearing to obtain either a letter of offer or Certificate of Enrolment. The Tribunal allowed the applicant a period of two weeks after the hearing to obtain the required enrolment evidence; however, no further submissions were received by the due date of 5 May 2017. As of today, 29 May 2017, the Tribunal has not received any further submissions from the applicant.

29    As will be seen, there was an issue before the primary judge as to whether, in light of Mr Mohammed’s email, it was strictly correct for the Tribunal to say that it had received no “further submissions” from Mr Mohammed. There was also an issue whether, having regard to what the Tribunal said about receiving no further submissions, it should be inferred that the Tribunal had “overlooked” the email.

30    In any event, the Tribunal concluded that there was no evidence before it that Mr Mohammed was enrolled in, or had a current offer of enrolment in, any relevant course of study. The Tribunal found, therefore, that Mr Mohammed did not meet cl 573.231 of Schedule 2 to the Regulations and affirmed the decision not to grant him the visa.

the circuit court proceedings and judgment

31    Mr Mohammed applied to the Circuit Court for judicial review of the Tribunal’s decision. He was legally represented on that application. His amended application contained four grounds upon which he contended that the Tribunal had made a jurisdictional error. It is unnecessary, for the purposes of this appeal, to refer to the first three grounds of review. It is sufficient to say that the primary judge rejected those three grounds and that Mr Mohammed’s appeal does not challenge that rejection.

32    Review ground four was in the following terms (as drafted):

Ground four

4.    The Tribunal failed to consider the evidence before it. At (8) the Tribunal states:

“……….At the time of the hearing the applicant was not enrolled in a course of study and he requested a two week period of post hearing to obtain either a letter of offer or Certificate of Enrolment. The Tribunal allowed the applicant a period of two weeks after the hearing to obtain the required enrolment evidence, however, no further submissions were rec3eived [sic] by the due date of 5 May 2017. As of today, 20 May 2017, the Tribunal has not received any further submissions from the applicant.”

Particulars

a.    The statements of the Tribunal at 4 above are incorrect. In that the applicant did send an email to the Tribunal on 26 April 2017. This email appears at p.69 of the Court Book.

b.    A failure by the Tribunal to refer to the evidence as stated at a. above is a failure by the Tribunal to consider the evidence before it.

c.    In failing to consider the evidence as stated at b. above, the Tribunal committed jurisdictional error.

33    As can be seen, this ground of review lacked clarity and coherence. The contentions which would appear to be implicit in the ground were that Mr Mohammed’s email sent to the Tribunal on 26 April 2017 comprised “evidence”; that the Tribunal failed to consider that evidence; and that, as a result, the Tribunal “committed” jurisdictional error. What was unclear was why the email was said to comprise evidence and why a failure to consider it amounted to jurisdictional error.

34    As will be seen, the clarity of this review ground does not appear to have been enhanced by the submissions which were apparently made on Mr Mohammed’s behalf at the hearing of his review application. Indeed, it would appear from the primary judge’s reasons for Judgment that the submissions appeared to have only muddied the waters.

35    Mr Mohammed also filed an affidavit which annexed a copy of the transcript of the hearing before the Tribunal on 21 April 2017. He did not rely on any other evidence.

36    Mr Mohammed’s application was heard by the primary judge on 13 June 2018. On that day, his Honour delivered an ex tempore judgment, dismissing the application with costs.

37    As has already been noted, the primary judge rejected Mr Mohammed’s first three grounds of review. His Honour’s reasons for rejecting those grounds are not the subject of appeal.

38    In relation to review ground four, his Honour rejected the contention that the Tribunal failed to consider the evidence before it. His Honour noted that Mr Mohammed’s argument in relation to review ground four was based on the assertion that paragraph [8] of the Tribunal’s reasons revealed that the Tribunal had ignored his email of 26 April 2017. The primary judge rejected that assertion: Judgment at [23]. His Honour reasoned that the purpose of the adjournment was to allow Mr Mohammed to obtain and provide to the Tribunal evidence in the form an offer of enrolment and that, while the Tribunal twice referred to “submissions” in paragraph [8] of its Reasons, “it would be taking an overly pernickety view of the Tribunal’s reasons to construe that paragraph simply to mean that there was no response from the applicant at all”: Judgment at [24]. In those circumstances, his Honour declined to infer that the Tribunal overlooked the email.

39    What his Honour appeared to be saying was that paragraph [8] of the Tribunal’s Reasons suggested that the Tribunal had not overlooked the email but, rather, had considered it and formed the view that it did not constitute or contain the evidence which Mr Mohammed had been invited to provide to the Tribunal during the period of the adjournment. His Honour appeared to reason that it would have been strictly correct for the Tribunal to say that it had received no further evidence from Mr Mohammed in relation to his enrolment in a course, and that the Tribunal’s use of the word “submissions” instead of “evidence” was a mere typographical or drafting slip.

40    Importantly, however, his Honour then went on to state that, even if the Tribunal had overlooked the email, no jurisdictional error had been established: Judgment at [24]. That was because the email was “not something that was critical to the reasoning” and “not something that might, if considered, have led to a different result”: Judgment at [25].

41    The primary judge noted that, in oral submissions made on Mr Mohammed’s behalf at the hearing, it was argued that, in overlooking the email, the Tribunal had acted unreasonably and that reliance had been placed on the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The arguments advanced on Mr Mohammed’s behalf appeared to include an argument that the Tribunal had acted unreasonably in failing to exercise its discretionary power in s 363(1)(b) of the Migration Act to “adjourn the review from time to time”: see Judgment at [26]. The primary judge rejected that argument. His Honour reasoned (Judgment at [27]-[28]):

That power had in fact been exercised by the Tribunal in favour of the applicant. It was exercised no doubt in appreciation of the fact that the applicant was bound to lose if he did not produce the documents which he was given an opportunity to obtain. The power however, does not, on my reading of s.363(l)(b), extend to giving what was requested by the applicant, namely a “written permission”. It is not at all clear to me what a written permission means, but even on its broadest reading, cannot fall within the power to adjourn the review from time to time.

That means that the request was made of the Tribunal to do something that it, in effect, had no power to do. As a consequence, the failure by the Tribunal to have regard to that request could not have led it to a different decision. It was not a document such as the one considered by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99, which might have supported the applicant's claim to satisfy one of the criteria for the grant of the visa. It was a request which in effect could not have been met by the Tribunal. So even accepting the applicant's newly raised argument, ground 4 cannot be made out.

42    As noted earlier, the primary judge dismissed Mr Mohammed’s application with costs.

PROCEDURAL ISSUES

43    At the hearing of his appeal, Mr Mohammed was granted leave to file an amended notice of appeal which contained the following single ground of appeal (underlining and strikethrough not reproduced):

1.    The Federal Circuit Court erred by failing to uphold the fourth ground of the appellant’s amended application to that Court, and by failing to find that the Tribunal had made a jurisdictional error by overlooking the applicant’s email to the Tribunal of 26 April 2017, in that the Tribunal had thereby:

a.    breached the rules of procedural fairness;

b.    failed to fulfil its duty to a self-represented litigant to ensure that the litigant has sufficient information about the practice and procedure of the tribunal, so far as is reasonably practicable, for the purpose of ensuring a fair trial (in that the Tribunal should have informed the appellant that the appropriate procedure was to make a formal submission if it was not prepared to consider the email);

c.    acted unreasonably, in the legal sense, in that it failed to consider the appellant’s submission, which the Tribunal had invited;

d.    failed to consider whether to adjourn; and, or in the alternative,

e.    failed to conduct the review by the Migration Act 1958.

44    Mr Mohammed also filed three affidavits. The first affidavit annexed a number of documents, including: copies of the transcript of the Tribunal hearing; the email and documents sent by him to the Tribunal on 26 April 2017; the Tribunal’s decision; and his amended application for judicial review, filed in the Circuit Court on 15 September 2017. The second affidavit annexed a copy of the transcript of the hearing in the Circuit Court. The third affidavit included Mr Mohammed’s evidence of what he would have done had he received a response from the Tribunal to his 26 April 2017 email.

45    The Minister contended that Mr Mohammed’s ground of appeal raised arguments that were not agitated before the primary judge. He submitted that Mr Mohammed accordingly required leave to raise those arguments on appeal. He opposed the grant of leave. The Minister also objected to Mr Mohammed being permitted to rely on the second and third affidavits.

Leave to allow new grounds to be argued on appeal

46    Mr Mohammed was granted leave to raise the arguments in his ground of appeal which were not argued, or not clearly argued, in the court below. For reasons that will become apparent, it is unnecessary to provide detailed reasons for why the grant of leave was appropriate.

47    Despite Mr Mohammed’s protestations to the contrary, there could be little doubt that the arguments that he sought to pursue on appeal differed in some respects from the arguments which were advanced on his behalf in relation to ground four in the Circuit Court. As has already been noted, the arguments advanced in the Circuit Court were premised on the assertion that the Tribunal failed to consider “evidence” and, to the extent that unreasonableness was raised, it was not clearly articulated and appeared to hinge solely on the contention that the Tribunal had acted unreasonably in failing to grant a further adjournment. The arguments that Mr Mohammed sought to agitate on appeal extended to arguments involving allegations that the Tribunal denied Mr Mohammed procedural fairness, failed to fulfil its duty to Mr Mohammed as a self-represented litigant, and acted unreasonably in ways other than refusing to grant a further adjournment.

48    Nevertheless, the arguments that Mr Mohammed sought to raise on appeal all ultimately related, in one way or another, to the contention that the Tribunal either overlooked, or failed to engage with or respond to, Mr Mohammed’s email of 26 April 2017. That was apparently also the main focus of review ground four in the Circuit Court, though the actual arguments which were advanced in that court lacked clarity. The new arguments which Mr Mohammed sought to rely on in support of his appeal were really just new or different ways of putting the proposition that the Tribunal’s failure to respond to or deal with Mr Mohammed’s email amounted to a jurisdictional error.

49    In the Circuit Court it was argued that, by overlooking the email, the Tribunal failed to have regard to the “evidence” that was before it. That argument was effectively not pressed or pursued on appeal. It appears to have been accepted that the email did not relevantly constitute evidence. Instead, Mr Mohammed sought to argue that, in failing to respond to his email, the Tribunal denied him procedural fairness and acted unreasonably. Ultimately, the arguments advanced in support of the proposition that the Tribunal denied Mr Mohammed procedural fairness were very similar to those that were said to support the proposition that the Tribunal acted unreasonably. The arguments concerning the Tribunal’s duty to Mr Mohammed as an unrepresented party were also primarily advanced in support of the grounds relating to unreasonableness and denial of procedural fairness. The nub of the argument was that the Tribunal was obliged to respond to Mr Mohammed’s email, particularly given that he was unrepresented, and that, by not doing so, the Tribunal effectively denied Mr Mohammed the opportunity to fully present his case to the Tribunal, either during the two-week adjournment which had been granted, or during any further period during which the review may have been adjourned.

50    Putting to one side, for the moment, the issue relating to whether Mr Mohammed should be permitted to adduce further evidence in support of his appeal, the Minister did not contend that he was prejudiced in any material way by the fact that some of the arguments that Mr Mohammed wanted to put in support of his appeal were not clearly raised in the Circuit Court. Save for the proposed further evidence, the new arguments did not involve any factual assertions which could have been challenged or met with evidence adduced by the Minister in the court below.

51    It may readily be accepted that there are sound reasons why the Court would not allow an appellant to agitate arguments on appeal which were not argued in the court below: see Coulton v Holcombe (1986) 162 CLR 1 at 7. That is perhaps particularly the case in relation to appeals from the Circuit Court in respect of migration decisions, given that the evident intention of Part 8 of the Migration Act is to restrict trials of judicial review applications to the Circuit Court: see AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [14]. That intention would be defeated if, by too readily allowing fresh arguments to be agitated on appeal, this Court became a de facto trial court in such cases.

52    For the reasons already adverted to, however, it was appropriate to grant Mr Mohammed leave to put his legal arguments relating to the Tribunal’s treatment of his 26 April 2017 email in ways that differed in some respects from the arguments that were advanced in the Circuit Court.

Leave to permit evidence to be led on appeal

53    It was ultimately unnecessary for Mr Mohammed’s first affidavit to be read. That was because the documents annexed to it were all included in the Appeal Book in any event.

54    It was equally unnecessary for Mr Mohammed’s second affidavit to be read. As noted earlier, the second affidavit simply annexed the transcript of the proceedings in the Circuit Court. The only issue that the Circuit Court transcript went to was whether the arguments which Mr Mohammed sought to raise on appeal had in fact been argued in the Circuit Court. Ultimately, however, the question whether Mr Mohammed should be granted leave to raise any new arguments on appeal was able to be considered and determined without recourse to the transcript.

55    The main question was whether Mr Mohammed should be permitted to read his third affidavit. That affidavit contained evidence which unquestionably could have been adduced by Mr Mohammed in the Circuit Court. As already noted, the evidence concerned what Mr Mohammed claimed he would have done if the Tribunal had replied to his email.

56    The further evidence sought to be adduced by Mr Mohammed was not admitted for the reasons that follow.

57    Mr Mohammed submitted that this evidence would be relevant to the exercise of the Court’s discretion if it was found that error had been demonstrated. It would appear to be fairly clear, however, that the affidavit was sworn in response to the Minister’s written submissions. The Minister’s submissions pointed out, amongst other things, that there was no evidence in the Circuit Court about what Mr Mohammed would or would not have done if he had received a reply to his email. It was readily apparent that Mr Mohammed was seeking to close what he perceived may have been a gap in his evidence in the Court below and to sure up his case that the Tribunal’s failure to respond to his email constituted either legal unreasonableness or a denial of procedural fairness.

58    The Court may, in its discretion, receive further evidence on appeal: s 27 of the Federal Court of Australia Act 1976 (Cth). Rule 36.57 of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court to receive fresh evidence on appeal, but that the application should be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit which states, amongst other things, the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from. Mr Mohammed did not file an application pursuant to r 36.57 of the Rules. More significantly, he did not adduce any evidence as to why the evidence was not adduced in the Circuit Court.

59    Generally, if the evidence could have been adduced below by the exercise of reasonable diligence, it will not be admitted on appeal: CDJ v VAJ (1998) 197 CLR 172 at [55] (per Gaudron J); Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [4]-[7]; Sami v Minister for Immigration and Citizenship [(2013) 139 ALD 1 at [7] There is, however, no invariable rule in that regard: CDJ v VAJ at [116] (McHugh, Gummow and Callinan JJ). It is also ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence is cogent and would be likely to have produced a different result at trial if it had been adduced: Guss v Johnson [2000] FCA 1455 at [30] (Sackville J, Drummond and Dowsett JJ agreeing); Sami at [7]. In the present context, the question is whether the evidence would be likely to bear upon the jurisdictional error that has been alleged: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27].

60    The evidence which Mr Mohammed now seeks to adduce may well have been relevant to review ground four in the Circuit Court. It may, amongst other things, have been relevant to his argument concerning legal unreasonableness. That said, it is highly doubtful that the evidence would, if adduced, have produced a different result, or would be likely to bear significantly upon the jurisdictional error that has been alleged by Mr Mohammed. At the hearing, counsel for Mr Mohammed effectively conceded that the evidence was not of particular significance.

61    There also could be little doubt that the evidence could, by the exercise of reasonable diligence, have been adduced in the court below. No explanation whatsoever was given for why it was not. Two additional things should be noted in this context. First, Mr Mohammed was legally represented in the Circuit Court and on appeal. Second, had the evidence been adduced in the court below, it may well have been challenged by the Minister. At the very least, Mr Mohammed may have been cross-examined in relation to it.

62    It is also significant that the evidence appears to have been intended to overcome a deficiency in evidence in the court below, or to retrieve a point which was raised below and lost. That should ordinarily not be permitted: cf. Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [20]-[21]. To accede to an application to adduce further evidence in such circumstances would be tantamount to impermissibly shifting the arena of dispute from a primary judge to an appellate court: Freeman v National Australia Bank Ltd [2003] FCAFC 200 at [66]; Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420 at [127] (Flick and Perry JJ); cf. CDJ v VAJ at [111].

63    Finally, it was relevant that, despite being represented by both a solicitor and counsel, Mr Mohammed had not even attempted to comply with r 36.57 of the Rules or provide any explanation for why the evidence was not adduced in the Circuit Court. The evidence was also served very late.

Mr Mohammed’s arguments on appeal

64    Lengthy and detailed written submissions were filed on Mr Mohammed’s behalf. His case on appeal was put in various different ways and many authorities were cited. In broad terms, however, it was submitted that, by overlooking and failing to deal with Mr Mohammed’s email of 26 April 2017, the Tribunal made a jurisdictional error by denying him procedural fairness, by breaching its duty to Mr Mohammed as a self-represented litigant, and by acting unreasonably “in the legal sense”.

65    Mr Mohammed’s arguments on appeal appeared, initially at least, to be premised on the contention that, contrary to the finding made by the primary judge, the Tribunal “overlooked” his email. It was said that the Tribunal either overlooked the email because, for some reason or another, the email was not provided to the Tribunal member, or because the Tribunal member received the email but for some reason did not “deal with” it. It was submitted that the primary judge’s finding concerning the email was, in substance, a positive finding that the Tribunal considered the email. That was said to be an error of law, either because there was no evidence to support that finding, or because it was otherwise unreasonable. Ultimately, however, most, if not all, of Mr Mohammed’s arguments concerning denial of procedural fairness and unreasonableness appeared to be equally premised on the proposition that the Tribunal did receive the email but decided not to engage with or respond to it.

66    The alleged denial of procedural fairness was put in various different ways. The central argument, however, that by “overlooking” the email, the Tribunal denied Mr Mohammed a reasonable or “meaningful” opportunity to put his case. That was said to amount to a contravention of either s 359 or s 360 of the Migration Act. The specific reference to ss 359 and 360 of Migration Act was in apparent acknowledgement of s 357A of the Migration Act, which provides that Division 5 of Part 5 of that Act is to be “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. It was also contended that Mr Mohammed was denied procedural fairness by reason of the Tribunal’s failure to consider granting him an adjournment in response to his email. That was also said to have denied him a reasonable opportunity to present his case.

67    The alleged breach by the Tribunal of its duty to Mr Mohammed as a self-represented litigant was also put in various different ways. The nub of the argument that was finally put, however, was that the Tribunal was obliged to inform Mr Mohammed of the practice and procedure of the Tribunal. Specifically, it was contended that, in light of his email request to the Tribunal to provide him with “written permission”, the Tribunal was required to advise Mr Mohammed that it would not, or could not, provide any such permission. It was contended that the failure of the Tribunal to provide that advice meant that Mr Mohammed waited for the Tribunal’s response instead of continuing his efforts to obtain a letter of offer of enrolment. The result, so Mr Mohammed contended, was that he was denied a reasonable opportunity to put his case.

68    Ultimately, Mr Mohammed conceded or acknowledged that his contention that the Tribunal breached its duty to him as an unrepresented party was not a stand-alone ground, but was rather a consideration which fed into his arguments concerning the alleged denial of procedural fairness and unreasonableness.

69    Mr Mohammed’s arguments concerning legal unreasonableness, while again initially couched in fairly broad and general terms, ultimately turned on the contention that the Tribunal had unreasonably exercised two of its powers: first, its power under s 360 of the Migration Act to invite Mr Mohammed to a hearing; and second, its discretion under s 363(1)(b) of the Migration Act to adjourn the review from time to time. The argument in relation to s 360 appeared to hinge on the proposition that, because the Tribunal failed to respond to Mr Mohammed’s email, it denied him a meaningful opportunity to fully put his case. The argument in relation to s 363(1)(b) appeared to be premised on the proposition that Mr Mohammed’s email amounted to a request for a further adjournment, or at least enlivened the Tribunal’s discretion to consider whether the review should be adjourned.

70    Mr Mohammed did not press paragraph (e) of his amended notice of appeal. No submissions were made in relation to that ground.

CONSIDERATION

71    Mr Mohammed’s grounds of appeal and submissions essentially raise four issues.

72    First, did the primary judge err in not finding that the Tribunal overlooked the email?

73    Second, did the Tribunal breach its duty to Mr Mohammed, as an unrepresented party, by failing to respond to his email?

74    Third, did the Tribunal’s failure to engage with or respond to Mr Mohammed’s email breach s 359 or s 360 of the Migration Act and therefore breach the “natural justice hearing rule” as it applied to the review?

75    Fourth, did the failure to engage with or respond to Mr Mohammed’s email constitute an unreasonable exercise of the Tribunal’s power or discretion under either s 360 or s 363(1)(b) of the Migration Act?

Did the Tribunal “overlook” Mr Mohammed’s email?

76    As has already been noted, the primary judge rejected Mr Mohammed’s contention that the Tribunal had overlooked his email. His Honour reasoned that an adjournment had been granted to Mr Mohammed for the specific purpose of allowing him to provide further evidence and that, although in paragraph [8] of its Reasons the Tribunal stated that Mr Mohammed had not provided any further “submissions”, read in context, the Tribunal was in fact referring to the fact that Mr Mohammed had not provided any further evidence.

77    It is undoubtedly correct that Mr Mohammed had not provided any further evidence to the Tribunal during the two-week adjournment, or, indeed, at any time prior to the Tribunal’s decision. It is perhaps also correct that Mr Mohammed had not provided any further submissions. It is difficult to see how Mr Mohammed’s email could be characterised as a submission. It follows that the Tribunal’s statement that it had not received any further submissions from Mr Mohammed was strictly correct.

78    It is nevertheless curious and somewhat unfortunate, if not regrettable, that the Tribunal made no specific reference to Mr Mohammed’s email in its Reasons. The Tribunal could have simply said that it had received an email from Mr Mohammed, but the email did not include the evidence which Mr Mohammed had been granted the adjournment to obtain. The Tribunal could equally have said that the email did not contain any further relevant submissions. Had the Tribunal referred to the email, it at least would have been clear whether and how the Tribunal had considered or approached the email. As it was, however, Mr Mohammed was left wondering and, more significantly, the question whether the Tribunal considered the email or overlooked it was effectively left up to inference.

79    There are three available inferences. The first is the inference apparently drawn by the primary judge; the Tribunal considered the email, determined that it did not contain any evidence, and its reference in paragraph [8] of its Reasons to not having received further submissions was in fact a reference to it not having received any evidence. The second is that the Tribunal member received the email but, for whatever reason, overlooked it when it came to making its decision. The third is that, while the email was received in the Tribunal’s “National Registry Mailbox”, for whatever reason, it was not passed on to the Tribunal member who was conducting the review. The Tribunal member therefore did not know that the email had been sent by Mr Mohammed.

80    In all the circumstances, I would incline towards the view that third inference is the most reasonable and rational inference. That is mainly because it is difficult to see why, if the Tribunal member had in fact received the email, she would not have caused a response of some sort to be sent to Mr Mohammed. It is equally difficult to see why the Tribunal member would not have said anything about the email in her Reasons, other than to say that no “submissions” had been received. The Tribunal’s use of the word “submissions” is also curious. It tends to suggest that the Tribunal was saying that it had received no communication from Mr Mohammed. It is difficult to accept that the Tribunal’s use of the word “submissions” was a mere slip, and that it intended to say “evidence”.

81    As for the second inference, it is difficult to see how the Tribunal member could have simply overlooked the email if it had in fact been received by her.

82    Ultimately, however, it does not really matter which inference is the preferable one. That is because Mr Mohammed’s case below, and on appeal, relied mainly on the fact that the Tribunal did not respond to the email. That is a matter about which there was and is no dispute. If the Tribunal was under a duty to respond to the email, or if the failure to respond to it was productive of procedural unfairness of some sort, or constituted an unreasonable exercise of power or discretion by the Tribunal, it matters not whether the failure to respond was the result of the Tribunal having overlooked the email, or was the product of a conscious decision on the part of the Tribunal.

83    It should also be reiterated, in this context, that the primary judge’s dismissal of Mr Mohammed’s application for judicial review ultimately did not turn on his Honour’s unwillingness to infer that the Tribunal overlooked the email. His Honour found, in effect, that, even if the email was overlooked as contended by Mr Mohammed, there was no jurisdictional error on the part of the Tribunal. His Honour’s reasoning in that regard addressed the particular arguments that were advanced on behalf of Mr Mohammed in the Circuit Court. The arguments advanced by Mr Mohammed on appeal are different in important respects, but nevertheless effectively amounted to an acknowledgement that it was not enough for Mr Mohammed to simply establish that the Tribunal overlooked the email. Nor was it enough, on appeal, for Mr Mohammed to simply establish that the primary judge erred in failing to find that the Tribunal overlooked the email. It was necessary for him to establish that, by failing to respond to the email, whether deliberately so or as a result of having overlooked it, the Tribunal somehow failed to satisfy or perform the requirements which were essential to the valid performance of its review jurisdiction.

Did the Tribunal have a duty to respond to the email?

84    There could be little doubt that it would have been preferable for the Tribunal to respond in some way to Mr Mohammed’s email. Had it done so, it is highly unlikely that Mr Mohammed would have had any grounds upon which to allege jurisdictional error on the part of the Tribunal. The failure to respond to the email in any way has been productive of considerable delay and expense. It does not necessarily follow, however, that the Tribunal was under some form or type of duty to respond to the email. Nor does it necessarily follow that the failure to respond to the email gave rise to any jurisdictional error.

85    Mr Mohammed relied on a number of authorities which establish that courts have an overriding duty to ensure that a trial is fair and that, in that context, a trial judge has an obligation to take appropriate steps to ensure that a self-represented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable, for the purpose of ensuring a fair trial: Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [37]-[43] and [58]. The duty does not, however, extend to giving advice to a self-represented litigant; the touchstone remains that of fairness: Hamod at [312]-[313].

86    It has also been accepted that the Tribunal must ensure that an unrepresented party is not unfairly disadvantaged and receives a fair hearing: Wade v Comcare (2002) 69 ALD 602 at [25]; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [48]; Heyward v Minister for Immigration and Citizenship (2009) 113 ALD 65 at [14].

87    The Minister pointed out that the cases which appeared to accept that the Tribunal must ensure that an unrepresented party is not unfairly disadvantaged and receives a fair hearing did not involve cases where the Tribunal was conducting a review of “Part 5-reviewable decisions”, as defined in s 338 of the Migration Act, which are subject to Division 5 of Part 5 of the Migration Act. That is no doubt correct. It does not follow, however, that a Tribunal which is conducting such a review is not similarly obliged to ensure that an unrepresented party receives a fair hearing. Section 357A(3) of the Migration Act provides that, in applying Division 5 of Part 5, the Tribunal “must act in a way that is fair and just”. It would appear to follow that, relevantly, the Tribunal must ensure that a hearing conducted as a consequence of an invitation given under s 360 must be conducted in a way that is fair and just; which, in context, means that the review applicant must be given a reasonable or meaningful opportunity to present evidence and arguments in relation to the issues arising on the review: Li at [60]-[61].

88    It does not follow, however, that all that has been said in the authorities concerning a court’s duty to an unrepresented litigant, particularly in the context of criminal proceedings, would necessarily apply to the Tribunal conducting a review in accordance with Division 5 of Part 5 of the Migration Act. Proceedings in a court are adversarial in nature. A review in the Tribunal is inquisitorial. Reviews of “Part 5-reviewable decisions” rarely involve any contradictor and, as has already been noted, are governed by the provisions of Division 5 of Part 5 of the Migration Act, which, by virtue of s 357A, are taken to provide an exhaustive statement of the requirements of the natural justice hearing rule. It follows that the content of the Tribunal’s duty to ensure that an unrepresented applicant receives a fair and just hearing is likely to differ in material respects from the duty that a trial judge owes to an unrepresented litigant in adversarial proceedings. As the Full Court said in Heyward (at [14]), “the content of any obligation to ensure that an unrepresented person receives a fair hearing varies according to the circumstances of the case and the apparent capacities of that person”.

89    The circumstances of Mr Mohammed’s case were that he was invited to attend a hearing pursuant to s 360 of the Migration Act. In the same letter that invited Mr Mohammed to attend a hearing, the Tribunal requested that Mr Mohammed provide certain specified information to it within seven days of the hearing. That information included a copy of his current certificate of enrolment, or documents showing that he was currently enrolled in a course, or had an offer of enrolment. The Tribunal was empowered to request that information by s 359 of the Migration Act. Mr Mohammed did not provide that information seven days prior to the hearing. In those circumstances, the Tribunal was empowered by s 359C of the Migration Act to make a decision in respect of Mr Mohammed’s review without taking any further action to obtain the information.

90    Mr Mohammed also did not provide that information at the hearing. The Tribunal could, in those circumstances, have decided Mr Mohammed’s review application on the basis of the evidence which was then before it. The Tribunal elected, however, to give Mr Mohammed a further two weeks in which to supply that information. It did so of its own motion. It is also important to note that Mr Mohammed’s evidence at the hearing was that his intention was to enrol in a particular course; a Bachelor of Business at the Holmes Institute of Business. He said that he had previously received an offer letter from that education provider, but it had been cancelled “because it was too late”. He did not suggest that he was likely to encounter any difficulties getting a letter of offer from the Holmes Institute of Business. Indeed, he initially indicated that he would only need one week to obtain it. Importantly, he did not suggest that he would endeavour to obtain an offer from some other education provider in relation to some other course if he was unable to get a letter of offer from the Holmes Institute of Business.

91    Mr Mohammed’s email of 26 April 2017 must also be considered in the context of the evidence that he gave at the hearing, as well as in the context of what the Tribunal said when it granted Mr Mohammed the two-week adjournment. The Tribunal did not, as Mr Mohammed’s email asserted, request him to provide an “offer letter/CoE from any provider”. Rather, the Tribunal had given Mr Mohammed one final opportunity to provide evidence that he had been offered enrolment in “the college that you intend to enrol in”, which was the Holmes Institute of Business.

92    Mr Mohammed did not provide that evidence. Instead, he asked the Tribunal to provide him with a “written permission” that he could show to education providers for the purpose of obtaining a letter of offer of enrolment. He also provided the Tribunal with copies of documents that evidenced the courses that Mr Mohammed had completed in the past.

93    It is not now suggested that the Tribunal was obliged to provide Mr Mohammed with a “written permission”. Indeed, it was contended that the Tribunal had no power to provide any such thing to Mr Mohammed and that, because he was unrepresented, the Tribunal was under a duty to advise him that it would not, or could not, provide him with any such “written permission”. That was said to be a matter of practice and procedure.

94    The contention that the Tribunal was obliged to advise Mr Mohammed that it would not, or could not, provide a written permission to him is rejected.

95    While Mr Mohammed was a national of another country, he had been in Australia for almost 10 years. He had successfully applied for a number of previous student visas. Mr Mohammed had been requested, prior to the hearing, to provide evidence of his enrolment or evidence that he had been offered enrolment. The Tribunal made it abundantly clear to Mr Mohammed at the hearing that, to be granted a visa, he had to provide evidence that he was enrolled in or had been offered enrolment by an education provider. It was also made abundantly clear that he had been given another two weeks to obtain evidence of his enrolment or offer of enrolment, and that, if he did not provide that evidence within that time, the Tribunal would decide his case on the evidence that he had provided up to that point. It is clear from the terms of his email that Mr Mohamed understood why he had been given a further two further weeks and what he was required to do within those two weeks. There was no suggestion that Mr Mohammed was “inarticulate, overborne by the occasion or labouring under any disability or disadvantage which might have affected his ability to make reasonable decisions”: cf. Heyward at [14]. There was also no evidence to suggest that he did not understand or was confused by any aspect of the Tribunal’s practice and procedure. The terms of Mr Mohammed’s email alone did not support any such inference.

96    In all the circumstances, it was not incumbent on the Tribunal to provide what would, in effect, have constituted advice about an issue that extended beyond the Tribunal’s practice and procedure in conducting its review. The Tribunal’s obligation to act in a way that was fair and just in conducting its review, and in applying the provisions of Division 5 of Part 5 of the Migration Act specifically, did not require the Tribunal in all the circumstances to advise Mr Mohammed that it would not, or could not, supply Mr Mohammed with any “written permission” supposedly to enable him to secure an offer of enrolment.

97    It should perhaps be reiterated that it would have been preferable if the Tribunal had responded in some way to the email. In all the circumstances, however, the fact that Mr Mohammed was unrepresented did not oblige the Tribunal to provide advice to him about the issue he had raised in the email. Nor did any provision in Division 5 of Part 5 of the Migration Act, or the requirement that those provisions be applied in a way that was fair and just.

Did the Tribunal deny Mr Mohammed procedural fairness?

98    As already indicated, the only basis upon which it was contended that the Tribunal denied Mr Mohammed procedural fairness was the Tribunal’s failure to respond to Mr Mohammed’s email. That said to amount to a breach of the Tribunal’s duty to Mr Mohammed as an unrepresented party. It was also contended that it denied Mr Mohammed a reasonable or “meaningful” opportunity to put his case. That was said to amount to a contravention of either s 359 or s 360 of the Migration Act. It was also submitted that the requirements of procedural fairness effectively obliged the Tribunal to further adjourn the Tribunal hearing in response to Mr Mohammed’s email.

99    None of those contentions have any merit.

100    First, for the reasons already given, in the particular circumstances of this case, the Tribunal’s failure to respond to Mr Mohammed’s email did not breach any duty it owed to Mr Mohammed as an unrepresented party. Nor, in all the circumstances, did it breach the Tribunal’s obligation to conduct its review and apply the provisions of Division 5 of Part 5 of the Migration Act in a way that was fair and just.

101    Second, there was no breach or contravention of s 360 of the Migration Act. The Tribunal invited Mr Mohammed to a hearing in compliance with s 360 of the Migration Act. It then conducted a fair hearing. At the hearing it was explained to Mr Mohammed that, to obtain the visa he had applied for, he needed evidence of enrolment or an offer of enrolment. Despite the fact that Mr Mohammed had failed to comply with the Tribunal’s previous requests to provide evidence concerning his enrolment, the Tribunal gave Mr Mohammed additional time to obtain and provide that evidence. The Tribunal clearly explained to Mr Mohammed why it was giving him an additional two weeks, what he had to do in those two weeks, and what it would do if Mr Mohammed did not supply any further evidence. It did not invite further correspondence or queries from Mr Mohammed. The contention that Mr Mohammed was, in those circumstances, somehow denied a reasonable or meaningful opportunity to present his case at a hearing because the Tribunal did not respond to his email has no merit whatsoever and is rejected.

102    The contention that the Tribunal somehow breached s 359 of the Migration Act is equally unmeritorious. Of course, having invited Mr Mohammed to provide evidence or information concerning his enrolment during the two-week adjournment, the Tribunal would have breached s 359 of the Migration Act if it had ignored any such information or evidence provided by Mr Mohammed. It follows that, if Mr Mohammed’s email provided a letter of offer of enrolment as requested by the Tribunal, the Tribunal would almost certainly have made a jurisdictional error if it had ignored the further evidence supplied by Mr Mohammed. But that is not what occurred. Mr Mohammed’s email was not directly responsive to the Tribunal’s invitation and did not include any evidence or information concerning Mr Mohammed’s enrolment or offer of enrolment. Indeed, if anything, the email indicated that Mr Mohammed had not supplied, and would be unlikely to be able to supply, any further evidence.

103    It should perhaps also be emphasised in this context that the documents that Mr Mohammed supplied to the Tribunal along with his email were effectively irrelevant. As has already been noted, those documents simply evidenced the courses that Mr Mohammed had completed in the past. There was no issue concerning his past completion of courses. The review was not adjourned to allow Mr Mohammed to supply those documents. Indeed, it appears that the documents provided by Mr Mohammed had previously been supplied to the Department. At one stage during the hearing of the appeal, it appeared to be contended that the Tribunal was required to have regard to those documents as they comprised evidence supplied in response to the Tribunal’s request. That submission was ultimately not pursued and in any event had no merit whatsoever.

104    Third, Mr Mohammed’s claim that he was denied procedural fairness was heavily reliant on the proposition that he was effectively waiting for a reply to his email and that, if the Tribunal had responded to it and advised that it was unable or unwilling to provide the requested written permission, he would then have taken further steps to obtain an offer of enrolment in the week that still remained before the period of the adjournment expired. There was, however, no evidence before the primary judge to support the proposition that Mr Mohammed was waiting for a reply to his email, or that, if he had received such a reply, he could or would have taken further steps to obtain an offer of enrolment. Nor was that an inference that was reasonably available on the evidence. It will be recalled that the Tribunal had requested Mr Mohammed to provide evidence of his enrolment prior to the hearing. At the hearing itself, Mr Mohammed said nothing about having any difficulties obtaining an offer of enrolment. Indeed, he said that he had received one earlier but it had been cancelled. He initially appeared to suggest that he would be able to obtain one by the end of the week. It should also be noted in this context that Mr Mohammed did not follow up his email at any time before the Tribunal made its decision, which was another 24 days after the end of the period of the adjournment.

105    Fourth, there is no doubt that, in some circumstances, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Li at [19]. Mr Mohammed’s email did not, however, request a further adjournment or seek any further time for the provision of evidence of his enrolment or offer of enrolment. The terms of the email also did not otherwise oblige the Tribunal, in all the circumstances, to consider giving Mr Mohammed a further adjournment, or further time to provide the evidence that he had requested. Perhaps more significantly, even if the email did implicitly request an adjournment, or otherwise oblige the Tribunal to consider further adjourning the review, any implicit rejection of the adjournment request arising from the Tribunal’s failure to respond to the email would not, in any event, have been unreasonable in the circumstances. This issue will be considered in a little more detail in the context of Mr Mohammed’s contention that the Tribunal acted unreasonably.

Did the Tribunal exercise any power or discretion unreasonably?

106    As was noted earlier, there was considerable overlap between the arguments advanced by Mr Mohammed in relation to procedural fairness and legal unreasonableness. Ultimately, the essence of his argument was that the Tribunal exercised two of its powers or discretions unreasonably: first, its obligation to invite him to a hearing pursuant to s 360 of the Migration Act; and second, its discretion to adjourn the review from time to time pursuant to s 363(1)(b) of the Migration Act.

107    Mr Mohammed’s arguments regarding the Tribunal’s exercise of power pursuant to s 360 of the Migration Act have already been considered in the context of his arguments concerning the Tribunal’s breach of its duty to him as an unrepresented party and his arguments concerning the alleged denial of procedural fairness. It is unnecessary to repeat what has already been said in that regard. Suffice it to say that there is simply no basis for the contention that, by failing to respond to Mr Mohammed’s email, the Tribunal denied Mr Mohammed a meaningful opportunity to fully put his case.

108    As for Mr Mohammed’s argument concerning the Tribunal’s failure or refusal to further adjourn his review, it is uncontroversial that the Tribunal must act reasonably in the exercise of its discretion to adjourn a review pursuant to s 363(1)(b) of the Migration Act. In Li, Gageler J (at [101]) accepted that the Tribunal “has no general duty to adjourn a review because a review applicant believes that the passage of time will allow a visa criterion to be met”, but said that “a failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review”. Where, as here, the essential allegation is that the Tribunal failed to consider the exercise of its power to adjourn, the Tribunal will have failed to comply with a requirement essential to the valid performance of its duty to review if the circumstances were such that no reasonable tribunal could have failed to consider exercising that power: Li at [103] (Gageler J). Equally, the Tribunal’s failure to consider exercising its power to adjourn may be said to be unreasonable if, in the circumstances, the failure to consider adjourning the review lacked an “evident and intelligible justification” and therefore “bespeaks error”: Li at [76] and [85] (Hayne, Kiefel and Bell JJ).

109    The question, then, is whether the circumstances of Mr Mohammed’s case were such that it can be concluded that no reasonable tribunal could have failed to consider adjourning the review in response to his email, or that the failure to consider adjourning the review lacked an evident and intelligible justification. For the reasons that have essentially already been given, the answer to both those questions is “no”.

110    At risk of repetition, the relevant circumstances, in short terms, were: the Tribunal had requested Mr Mohammed to provide it with evidence of his enrolment or offer of enrolment seven days before the hearing; Mr Mohammed did not comply with that request and did not provide any, or any reasonable, explanation for not having complied with it; Mr Mohammed did not provide evidence of his enrolment at the hearing; the Tribunal decided to give Mr Mohammed a further period of time to provide that evidence; Mr Mohammed suggested that he needed a week, though the Tribunal gave him two weeks; the Tribunal made it clear to Mr Mohammed why the review had been adjourned for two weeks and what had to be done by him during that period if he wanted to satisfy the relevant visa criterion; the Tribunal made it equally clear to Mr Mohammed that it would decide his review application on the evidence before it at the conclusion of that two-week period; there was nothing to suggest that Mr Mohammed did not understand that to be the case; Mr Mohammed did not provide the required evidence, but instead sent an email to the Tribunal asking it to provide him with a “written permission”, which was something it could not provide; the email did not clearly or expressly request a further adjournment or further time to provide the requested evidence; the email did not suggest that giving Mr Mohammed further time was likely to be fruitful or of any utility unless he was also given a “written permission”, which was something that the Tribunal could not give him; and Mr Mohammed did not follow up the email when he did not receive a response, or provide evidence of his enrolment within the two-week period.

111    As has already been pointed out, it may readily be accepted that it would have been preferable for the Tribunal to have responded to Mr Mohammed’s email in some way. Having regard to all the circumstances, however, it cannot be concluded that no reasonable tribunal could have failed to consider adjourning the review, or failed to adjourn the review, in response to the email. Nor can it be concluded that the apparent failure of the Tribunal to consider adjourning the review, or the failure to adjourn the review, lacked an evident and intelligible justification or manifested error of a jurisdictional nature.

CONCLUSION AND DISPOSITION

112    Mr Mohammed failed to demonstrate that, by either overlooking or failing to respond to his email of 26 April 2017, the Tribunal failed to validly exercise its review jurisdiction. In overlooking or failing to respond to the email, the Tribunal did not deny Mr Mohammed procedural fairness, or fail to provide him with a meaningful opportunity to present his case, or exercise, or fail to exercise, any of its powers or discretions in a way that was legally unreasonable in the circumstances. None of Mr Mohammed’s grounds of appeal or the arguments advanced in support of them have any merit. It follows that his appeal must be dismissed with costs.

Associate:

Dated:    21 December 2018