Federal Court of Australia

Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1316

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J

Introduction

1    By notice of appeal, filed on 19 November 2021, the appellant appeals a decision of the Federal Circuit and Family Court of Australia (Division 2) (the FCFCoA): Syed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 175 (J). In that decision, the primary judge dismissed an application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the delegate of the first respondent, the then Minister for Immigration and Border Protection, to refuse the appellant a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa pursuant to s 65 of the Migration Act 1958 (Cth).

2    The appeal concerns whether the primary judge erred in not granting the appellant leave to pursue a claim that the Tribunal had denied the appellant procedural fairness and/or was legally unreasonable by reason of its purported refusal to adjourn the proceeding in circumstances where the appellant made no request of the Tribunal to adjourn the proceedings.

3    For the reasons set out below, I dismiss the appeal.

Background

4    The appellant is an Indian citizen who is 36 years of age. The appellant first arrived in Australia in January 2010 holding a student visa which he had until 15 May 2016. Just prior to its expiry he applied for the student visa which is the subject of this appeal. The appellant has remained in Australia on the basis of either a student or bridging visa.

5    On or about 13 May 2016, the appellant applied for a student visa. In order to be entitled to such a visa, the appellant was required to satisfy the requirements of subclass 572 of Sch 2 of the Migration Regulations 1994 (Cth) as they applied on 13 May 2016.

6    The primary judge summarised accurately the relevant procedural history giving rise to the delegate’s decision at J[6]–[7] which is extracted as follows:

6.    In his application for the Student visa, which the applicant prepared with the assistance of Ms Simran Baijal, a registered migration agent, the applicant provided “7F87D370” as his enrolment code. According to the data contained in the “Provider Registration and International Student Management System” the delegate conveyed to the applicant by letter dated 1 June 2016, the enrolment code 7F87D370 denoted the “Advanced Diploma of Leadership and Management” which was to commence on 20 June 2016 and end on 17 June 2018. The delegate’s letter conveyed the following additional information in relation to the applicant’s study history.

Examination of your study history in the Provider Registration and International Student Management System (PRISMS) indicate that you enrolled for a Bachelor of Business (Accounting) on 18/03/2013 and on 27/05/2014 your education provider Australian Institute of Business and Management Pty Ltd reported you to the Department of Immigration and Border Protection, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000and [sic] standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

You enrolled for a Bachelor of Business on 18/10/2015 at Australian Institute of Business and Management Pty Lt [sic]. However, on 18/04/2016, your education provider reported you to the Department of Immigration and Border Protection, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000and [sic] standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). They commented “enrolment reported unsatisfactory course progress - failed to appeal”.

7.    The delegate’s letter invited the applicant to comment on this and other information contained in the delegate’s letter “and explain why you were unable to achieve satisfactory course progress”. The applicant did not respond to the invitation.

(Emphasis in original, footnotes omitted).

The delegate’s decision

7    On 8 August 2016, the delegate refused to grant the visa. The delegate found the applicant did not meet the criteria in cl 572.223 in Sch 2 of the Migration Regulations and as such was not satisfied the applicant genuinely intended a temporary stay in Australia, surmising the applicant was using the student visa application as a means of maintaining residence in Australia.

8    With reference to cl 572.223 and Ministerial Direction No 53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications under s 499 of the Act, the delegate considered whether the applicant met the genuine temporary entry criterion by weighing up his circumstances as a whole:

PRISMS indicated that you have only completed a Certificate II, Certificate III, Certificate IV and a Diploma and Bachelor course since arriving in Australia, and that your current enrolment in Leadership and Management is very similar to your previous studies in Business. Therefore the value of this new course to your future is in question.

On 01/06/2016, an email was forwarded to your Migration Agent, Simran BAIJAL, inviting you to comment on your circumstances in relation to the genuine temporary entrant (GTE) criterion. A time period of 28 days was given for response.

In the invitation for comment, you were invited to provide, including documentary evidence, an explanation or comment regarding the following:

•    According to your record you have been in Australia for six (6) years and five (5) months, and if granted your visa would bring your total stay to more than eight (8) years and six (6) months. This indicates that you are using the student visa application as a means to maintaining residence in Australia.

•    Your education provider had reported you to the Department of Immigration and Border Protection, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). You were again reported by your education provider, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). They commented “enrolment reported unsatisfactory course progress - failed to appeal”. As you did not achieve satisfactory course progress you have not complied with visa condition 8202. You were asked to comment on the above information and explain why you were unable to achieve satisfactory course progress; including evidence such as academic transcripts or attendance reports.

…

To date, no response has been received. Therefore, I am not in a position to consider your viewpoint regarding your circumstances in relation to the points noted above. The circumstances relevant to your assessment on the genuine temporary entrant criterion are:

•    You have failed to respond to my request for comment and have not provided any further supporting documentation in relation to this application. This is not consistent with the behaviour of a genuine student who wants to secure a student visa to successfully continue his studies. This indicates that you are using the student visa application as a means to maintaining residence in Australia.

•    These indicate that you are not a genuine student. Rather, you appear to be using the Student visa program as a means of maintaining ongoing residence in Australia and you do not genuinely intend to stay in Australia temporarily.

(Emphasis in original).

9    The delegate concluded that:

Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

The Tribunal’s Decision

10    On 29 August 2016, the appellant applied for a review of the Minister’s decision. In the application, the appellant included the “Representative details” as being those of his migration agent, Mrs Baijal.

11    On 3 October 2017, the Tribunal wrote to the appellant inviting him to attend a hearing and requested the appellant provide documentation, with respect to his education, of which he would rely upon for the purposes of the review. The appellant was asked to provide:

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.

12    In addition to the letter, the Tribunal attached a document titled “Response to hearing invitation – MR Division” for completion. The letter and attachments were forwarded from the office of his migration agent to the appellant the following day (see at J[11]). The appellant completed the Response to hearing form, dating it “16/10/2017” and indicated his attendance and his agent’s non-attendance for the hearing.

13    By way of affidavit, dated 19 November 2021, despite the appellant having notified the Tribunal that he would be representing himself, the appellant deposed that he anticipated his migration agent would be attending the hearing, stating:

On 27 October 2017 I appeared before the Administrative Appeals Tribunal (“the Tribunal”) in case number: 1613718. I had a migration agent, however, the migration agent informed me only an hour before the commencement of the hearing that he could not attend. He did not give any reason why he could not attend. He only said I should attend the hearing by myself.

14    On 27 October 2017, the applicant attended a Tribunal hearing. On the same day, the Tribunal made a decision affirming the Minister’s decision to refuse to grant the visa and provided a statement of reasons for doing so notifying the applicant’s migration agent on 30 October 2017.

15    The Tribunal’s reasons were structured under the following topic headings: application for review (at [1]–[6] of the Tribunal decision); consideration of claims and evidence (at [7]–[15]); is the applicant a genuine student having regard to intention to comply and other relevant matters? (at [16]–[24]); decision: at [25].

16    The Tribunal noted that the appellant’s “student visa was refused on 8 August 2016 because he was not enrolled in, nor had been offered a place in, a principal course of study that had been specified by Gazette Notice as a type of course for any other of the Student (Temporary) (Class TU) visa subclasses 570, 571, 573, 574, 575 and 576”: at [8].

17    The Tribunal referred to the fact that the appellant had been invited to provide material or written arguments prior to the hearing but had not done so nor brought any additional documents to the hearing: at [9].

18    The Tribunal reasoned, at [10]–[14], that by reason of the absence of any evidence of his enrolment in a course or an offer of enrolment, he was not an “eligible VET student” with a confirmation of enrolment such that cl 572.223 (1A) did not apply. Paragraphs [10]–[14] of the Tribunal’s reasons are extracted:

10.    The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

11.     At the time of this decision, the applicant has not provided any evidence he is enrolled in a course or that he has an offer of enrolment. The applicant provided the Tribunal with a copy of the Department’s decision to refuse his subclass 572 student visa and the reason for the refusal of his visa was discussed with him at the hearing. He claims to have continued studying awaiting the outcome of the review by the Tribunal, but has provided no reliable evidence of any study he has undertaken since the time of application.

12.     The applicant said that before he applied for the student visa in May 2016, he tried to apply for bachelor level accounting courses at other colleges but that no other college would give him the bachelor course, so he applied for the Advanced Diploma of Accounting at George Brown College. He says he applied on his phone, using Adobe software, and thought he was enrolled in accounting, but that when he attended the college to start classes he found out he was enrolled in Leadership and Management and was told the college did not offer accounting. No documentary evidence was provided that supports this claim.

13.    The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

14.    On the evidence before the Tribunal, the applicant in this case was not at the time of application or has not at any time since then, and up to the time of this decision, been an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.

19    The Tribunal then considered the only other avenue by which the appellant may be eligible for a student visa under cl 572.223, namely by him conforming with the requirements in Sch 5A of the Migration Regulations: cl 572.223(2). This required the Tribunal to be satisfied that the appellant was a “genuine applicant for entry and stay as a student within the terms of cl 572.223(2)(b)” of Sch 2 of the Migration Regulations: see at [21].

20    The Tribunal found that, having regard to the Sch 5A evidentiary requirements, that it was not satisfied that the appellant was a genuine applicant for entry and stay as a student within the terms of cl 572.223(2)(b), for reasons which included: Since the appellant’s first application in 2010, the appellant had only completed one course – a Diploma in Business in 2014 – and had been in Australia for almost eight years. The appellant’s education provider had also reported him to the Department for not achieving satisfactory course progress. As such, the appellant had not complied with visa condition 8202. The appellant had been asked at the time by the Department to comment on this information and did not respond: at [17]–[18].

21    The Tribunal had regard to the matters set out in Ministerial Direction No 53, including as to whether the appellant genuinely intends to stay in Australia temporarily, having regard to his circumstances, immigration history and other relevant matters and noted at [19]–[21]:

19.    …

The applicant says his highest education qualification before he came to Australia was an intermediate high school certificate. The applicant has made poor academic progress in the nearly eight years he has been in Australia. He is not currently enrolled in a course, nor has he provided the Tribunal with evidence that he has been offered enrolment. He says he has nine more units to complete to receive his degree, but gave evidence that he has tried enrolling in bachelor courses without success.

20.     The applicant gave evidence that indicates he has family ties in India, that being his relationship with his mother, brother and sister who live in Hyderabad. He said he visited twice this year, in 2017. Once was for his own medical reasons and the other time to attend the funeral of his aunty. He says his wish is to finish his accounting qualification, to become an accountant and run a business of his own. He was asked how long he had planned to be in Australia when he came here and said he thought he would be a student here for three or four years at the most.

21.     The Tribunal accepts that the applicant has travelled back to India on four occasions from 2010 to 2015 and then twice in 2017 and that he appears to have some ties to India…

22    However, the Tribunal ultimately concluded on balance, weighing up all of the applicant’s circumstances, including particularly that he had not been able to find a college or university that would enrol him in an accounting course and currently had no offer of enrolment, that it was not satisfied that the applicant was a genuine applicant within the terms of cl 572.223(2)(b): at [21].

Relevant legislative provision

23    Clause 572.223 in Sch 2 of the Migration Regulations (as applicable at the time of the application) contained the requirements which had to be met for applicants to demonstrate they were a genuine applicant for a subclass 572 student visa:

(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a)     the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant’s circumstances; and

(ii)    the applicant’s immigration history; and

(iii)    if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)    any other relevant matter; and

(b)    the applicant meets the requirements of subclause (1A) or (2).

(1A)    If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

(a)    the applicant gives the Minister evidence that the applicant has:

(i)    a level of English language proficiency that satisfies the applicant’s eligible education provider; and

(ii)    educational qualifications required by the eligible education provider; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

(i)    the costs and expenses required to support the applicant during the proposed stay in Australia; and

(ii)    the costs and expenses required to support each member (if any) of the applicant’s family unit.

(2)     If subclause (1A) does not apply:

(a)    the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Before the primary judge

24    The application before the primary judge was for judicial review of the Tribunal’s decision in affirming the decision of the delegate to refuse the student visa.

25    At the FCFCoA hearing, the appellant sought to rely on two new grounds in a “further, further amended application”. Those grounds were numbered “proposed ground 5” and “proposed ground 6”. Proposed ground 5 is not pressed on appeal before this Court. Proposed ground 6 was as follows:

[Proposed ground 6]

The Tribunal denied the applicant procedural fairness.

Particulars

a.    The Tribunal’s failure in proceeding with the hearing even though the applicant had a migration agent acting for him but was not present at the hearing should have at once put the Tribunal on notice that the hearing ought to be adjourned in such a case. The Tribunal failed to do so. It is also relevant here to point out that the agent had completed the relevant invitation to hearing form from the Tribunal to indicate the names of the parties who would be attending the hearing. The agent had indicated on that form that the applicant’s agent would attend the hearing. This information itself, without any further information, was sufficient for the Tribunal to adjourn the hearing. The Tribunal failed to do so.

b.    The Tribunal’s failure in continuing with the hearing and not adjourning it despite having satisfied itself on the information before it that the agent was still acting for the applicant, was clearly a failure by the Tribunal to accord the applicant procedural fairness.

c.    The Tribunal failed to ask the applicant why the Agent was not present at the hearing.

d.    Had the Tribunal not failed to ask the relevant questions in the context as stated at Particular c. above, the applicant would have informed the Tribunal that:

i.    The migration agent - (husband – as both the husband and wife are migration agents) the husband (migration agent) had informed the applicant only the day prior to the Tribunal hearing that he would attend the hearing and for the applicant to meet him at the venue of the hearing. It was the applicant who had telephoned the agent. The agent said words to the effect that “I will see you tomorrow morning, be early.”

ii.    It is significant that the telephone call resulting in the conversation at (i) above was made by the applicant to the agent.

iii.    On the day of the Tribunal hearing, the applicant arrived, as arranged at the venue of the hearing.

iv.    There was no appearance of the agent. This was about an hour prior to the scheduled commencement of the Tribunal hearing. The applicant telephoned the agent to check where he was. The agent replied in words to the effect: “You should attend the hearing yourself as I won’t be able to make it!” The applicant was in a state of shock! The applicant kept requesting the agent to attend. However, the agent said in words to the effect: “Everything should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour.”

v.    The applicant puts it in his own words as follows:

“I was in shock to hear that and kept requesting him to attend and he advised that “everything should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour.

vi.    The applicant continues in his own words:

“I went ahead to the AAT, panicking and started to prepare on my own without any legal assistance. Wasn’t sure why my representative couldn’t make it and attended the AAT review hearing myself without any legal assistance.”

vii.    The applicant would have informed the Tribunal that when the agent had informed the applicant only an hour before the commencement of the hearing he was in a state of shock.

viii.    The applicant assumed that there was nothing he could do in the circumstances but to do his best. He had never attended a Tribunal hearing.

ix.    The applicant formed the view that the only option open to the applicant was to attend the Tribunal hearing by himself and without the assistance of the agent.

x.    In those circumstances the Tribunal commenced and continued the hearing.

xi.    Even after becoming aware that the agent was still acting for the applicant, the Tribunal questioned the applicant as to where its decision should be sent and the Tribunal formed the view that it should be sent to the agent.

xii.    On the facts before it, the Tribunal decided and forwarded its decision dated 30 October 2017 to the agent and not to the applicant; this indicating to the Tribunal that the agent was acting for the applicant and quite oblivious to the fact that the Tribunal had failed to provide procedural fairness to the applicant.

xiii.    There was evidence, as indicated above that the Tribunal ought to have adjourned its hearing and relisted it on another day when the agent would be present at the adjourned hearing.

xiv.    In the event the agent could not appear at the adjourned hearing, the agent should accordingly have informed the Tribunal as the obligation was on the agent to inform the Tribunal and provide reasons to the Tribunal why he could not attend the hearing on the appointed day and obtained another hearing date and informed the applicant accordingly. The agent failed to do so.

xv.    If the agent could not do as states at (xiv) above, he should have at least advised the applicant in reasonable time prior to the hearing so that the applicant could seek another migration agent to act for him. The failure by the agent resulted in the applicant appearing before the Tribunal unrepresented.

xvi.    Not only that the applicant arrived at the hearing shocked by what had happened only an hour prior to the hearing but he was relying on the agent to have prepared the case to be presented to the Tribunal. In reliance on the agent the applicant was caught completely off guard when the facts unfolded, as stated above.

xvii.    The above facts deprived the applicant a fair hearing.

(Emphasis removed).

26    The primary judge considered chronologically the relevant contact the Tribunal had had with the appellant and his migration agent before the hearing: at J[9]–[13].

27    The primary judge then considered the appellant’s evidence as tendered at hearing before his Honour. In particular, his Honour considered the appellant’s deposed assertion that the migration agent Mr Amit Baijal would attend the Tribunal hearing and concluded, at J[14]-[16]:

14.    In the second of the two affidavits the applicant made on 12 October 2021, the applicant deposes he did not receive the first page of the Response to Hearing Invitation; and that “the migration agent placed a cross in the relevant box to indicate ‘No’”. The applicant also deposes that “migration agent Amit Baijal would attend the Tribunal hearing”, this having being confirmed to the applicant by the “email of 4 October 2017”. Although the applicant was not cross-examined, I am not bound to accept the applicant’s evidence; and I do not accept it. The applicant’s assertions are made without reference to what the contemporaneous evidence shows – the office of the migration agent sent to the applicant the Response to Hearing Invitation with a request that the applicant read the document carefully, complete it, and return it by email to the migration agent’s office; and the Response to Hearing Invitation was completed by hand and signed by the applicant. The only rational inferences that are available to be drawn are that the applicant, not the agent, placed the cross in the box under the word “No” which appears under the question whether the applicant’s representative would be attending the hearing; and the applicant was not told, and the applicant could have had no expectation, that his migration agent would appear at the hearing before the Tribunal. That is supported by what I will later show occurred at the hearing before the Tribunal.

15.    In the first of the two affidavits the applicant made on 12 October 2021 the applicant deposes that Ms Baijal lodged the application for review with the Tribunal; the applicant was later informed “by both agents” that, as the review application was more difficult, Mr Amit Baijal would be dealing with the applicant’s review application; on the day before the hearing the applicant telephoned Mr Baijal “to ensure that everything was set for the Tribunal hearing the following day”, that Mr Baijal “assured” the applicant that “everything was fine and that” the applicant “should be at the venue of the Tribunal hearing in Clarence Street, Sydney well before time and that he would meet” the applicant there, and that Mr Baijal said he would see the applicant “tomorrow morning early, be early”; as arranged with Mr Baijal, on the morning of the hearing the applicant attended the hearing, but when he noticed that the hearing would commence within an hour, the applicant was concerned and nervous, so he rang Mr Baijal; and when the applicant telephoned Mr Baijal, Mr Baijal told the applicant he should “attend the hearing yourself as I won’t be able to make it”, and that everything “should be fine, you tell them the whole story of yours and you are willing to finish your studies, hopefully the decision will be in your favour”.

16.    The applicant then deposes as follows (errors in original):

I was placed in a situation at the Tribunal hearing that not only I had to answer any questions the Tribunal would ask me but at the same time to argue my case too. As to answering questions I did my best. However, my solicitor informed me that the agent had made no submissions to the Tribunal. I note from the Court Book that the only thing that the agent did was (a) lodge the application for review in the Tribunal (b) assure me the day before the Tribunal hearing that the agent would come to the hearing and (c) tell me one hour before the hearing that he (the agent) could not attend the hearing as stated above and that I attend the hearing and inform the Tribunal as stated at paragraph 7 above.

(Emphasis in original, footnotes omitted).

28    The primary judge then found, at J[17] that he did not accept that the applicant had made arrangements with Mr Baijal to attend and represent him at the hearing before the Tribunal for three reasons, at J[17]–[21]:

17.    I do not accept the applicant had made arrangements with Mr Baijal that Mr Baijal attend the hearing before the Tribunal. First, as I have already found, by 16 October 2017 the applicant completed and signed the Response to Hearing Invitation in which the applicant indicated his migration agent would not be attending the hearing.

18.    Second, the conversation the applicant says he had with Mr Baijal less than one hour before the Tribunal was due to begin is implausible. It is implausible that a migration agent in the position of Mr Baijal would simply have told a person in the position of the applicant less than one hour before the hearing was due to begin that he would not be able to make it, without giving any reason; and it is implausible that a person in the position of the applicant would not at the very least have asked Mr Baijal why he could not attend the hearing, or otherwise insist on Mr Baijal attending the hearing.

19.    Third, near the beginning of the Tribunal hearing, after the Tribunal, on the applicant’s request, asked people not connected with the applicant’s matter to leave the hearing room, and after the Tribunal confirmed the applicant’s name, the Tribunal asked: “You have a representative but she’s not here with you today?” The applicant simply said “Yes”. Further, at the end of the hearing, the following exchange occurred:

MEMBER: … You don’t want to ask anything before we finish up? You’ve given me everything you want me to look at?

APPLICANT:    Yes, I think so.

MEMBER:    Yes? All right, then, we’ll finish up the hearing now. Here is what will happen: I’ll take everything away. As I said, I’ve read the Department and tribunal files. I’ll take into account all the oral evidence we’ve received here today for you.

APPLICANT:    Yes.

MEMBER:    I haven’t made a decision yet but when I’ve considered all of that information I will make a decision and put it in writing and send that to your – it will go to your representative. Hang on a minute, it won’t, because don’t have one – no, you do?

APPLICANT:    I have one.

MEMBER:    It will go to your representative, Mrs Baja [sic].

APPLICANT:    Yes.

20.    If the applicant had the conversations with Mr Baijal the applicant said he did, it is unlikely the applicant would at the hearing have accepted the Tribunal referring to Ms Baijal, not Mr Baijal, was his migration agent; and it is unlikely the applicant would simply have said “Yes” to the Tribunal’s question that the applicant’s representative was not with the applicant at the hearing without referring to his being placed in the position he claims in his affidavit he found himself because Mr Baijal had informed him shortly before the scheduled time of the Tribunal hearing that he would not attend. It is also unlikely that, in response to the Tribunal’s asking the applicant whether “there is anything else”, the applicant would simply had said “no” if he had the conversations he says he had with Mr Baijal.

21.    It is plausible, and even probable, that, before the hearing, Ms Baijal or Mr Baijal gave the applicant advice to the effect that the applicant should tell the Tribunal that he is willing to finish his studies, and that hopefully the decision will be in the applicant’s favour. The Tribunal’s letter dated 3 October 217 [sic] identified documents and information it invited the applicant to provide to the Tribunal. There is no evidence the applicant had any such evidence or information, and the inference that is available to be drawn is the applicant did not have such documents or information. In those circumstances, it appears the only thing it was open to the applicant to submit to the Tribunal was the intentions the applicant claimed he held in relation to his future studies.

(Emphasis in original, footnotes omitted).

29    The primary judge found that each ground was “not arguable” and refused leave. With respect to “proposed ground 6”, relevant to this appeal, his Honour found at J[30]–[32]:

30.    The proposed ground 6 is not arguable. It relies on factual assertions that are inconsistent with the contemporaneous documentary evidence. First, proposed ground 6 incorrectly claims that the Response to Hearing Invitation was completed to represent the agent would be attending the Tribunal hearing. As I have already noted, a cross was included in the box in the Response to Hearing Invitation under the word “No” which, in turn, appears under the question: “Will your representative be attending?” Second, there is no basis for claiming the agent completed the Response to Hearing Invitation; the email Dannii Sabharwal sent to the applicant on 4 October 2017 requested the applicant read and complete the Response to Hearing Invitation; and the only rational inference that can be drawn from the contemporaneous documentary evidence is that the applicant completed and signed the Response to Hearing Invitation. Third, the Tribunal brought to the applicant’s attention at the beginning and at the end of the Tribunal hearing that the applicant had a migration agent; yet, acting entirely consistently with the representation conveyed by the Response to Hearing Invitation the applicant completed and signed, the applicant did not say anything to the Tribunal to the effect of which could suggest the applicant expected his agent to attend the hearing.

31.    I have also not accepted the applicant’s evidence of the discussions he deposes he had with Mr Baijal before the Tribunal hearing. Even if, however, such conversations occurred, there is nothing to suggest they came to the attention of the Tribunal. All that was before the Tribunal was a completed Response to Hearing Invitation signed by the applicant which stated the migration agent would not attend the hearing; the applicant’s confirming to the Tribunal that his migration agent was not attending the hearing; and the applicant’s confirming that the Tribunal should send its decision to the applicant’s migration agent. Thus, even if accepted, it is not arguable that the applicant’s conversations with Mr Baijal could have alerted the Tribunal to consider whether it should adjourn the hearing.

32.    Finally, the proposed ground 6 does not identify what purpose would have been served had the Tribunal adjourned the hearing. The ground does not identify any matter the agent could have raised at an adjourned hearing that could have led the Tribunal to make a different decision to the one it made. That leads to two, related, conclusions. The first is that, even if the absence of the applicant’s agent from the hearing ought to have led the Tribunal to consider whether to grant an adjournment, it is not arguable that the Tribunal would have decided to adjourn the hearing because there was no material before it that could have led it reasonably to conclude there would be any utility in adjourning the hearing. Second, the proposed ground 6 has not identified any matter that could arguably have led the Tribunal to make a decision different to the one it made, had it in fact adjourned the hearing. On the material before me, it is not arguable there would have been any utility in the Tribunal adjourning the hearing. Thus, it is not arguable that any failure by the Tribunal to consider to adjourn, or to decide to adjourn, the hearing was material to the Tribunal’s decision.

(Emphasis in original).

30    The primary judge then noted, at J[33], given his Honour’s conclusions that grounds 5 and 6 were not arguable, it was not necessary to consider matters that are usually necessary to consider when determining whether to grant a party leave to amend their notice of appeal.

Procedural matters with respect to this appeal

31    It is prudent to briefly outline the procedural history with respect to this appeal, which despite being filed on 19 November 2021, was not heard until 6 October 2022, following three adjournments of the hearing date (at the appellant’s request).

32    On 14 February 2022, the Court had emailed the parties seeking to set the matter down for hearing between April and June 2022. The appellant’s former solicitor advised that he could no longer act for the appellant due to health issues and was unable to find another pro bono solicitor.

33    On 18 February 2022, the appellant requested that the hearing date be extended to the end of June 2022.

34    On 24 March 2022, the Court emailed the parties regarding their availability in June or July 2022, to which the appellant requested the hearing be on the latest date possible in that period. The Minister was amenable to any date.

35    On 5 April 2022, the Court emailed the parties informing them that the matter was set down for hearing for 31 August 2022, before Allsop CJ.

36    On 28 June 2022, the appellant requested a second extension to October or November 2022 in order for his former solicitor to be able to represent him once his former solicitor’s health had improved. The Court emailed the parties extending the hearing date to 29 September 2022 and advised that it would not extend the date again.

37    On 26 August 2022, when this matter was now docketed to me, the appellant emailed the Court seeking a further extension of the hearing date to enable him to find legal representation.

38    The Court then listed the matter for case management on 6 September 2022. However, on that date the appellant indicated that he was meeting a solicitor later that day.

39    On 28 September 2022, one day before the hearing, the appellant emailed the Court, stating he was unwell and provided medical evidence to that effect. The respondent did not oppose the appellant’s application and the matter was adjourned and listed for hearing on 6 October 2022.

40    At the hearing, I made orders granting leave to the appellant to put on any further submissions by 20 October 2022 (which were received on 21 October 2022 (21 October submissions)) and for the Minister to put on any reply submissions by 27 October 2022 (which were received on 26 October 2022).

The present appeal

41    By the appellant’s notice of appeal in this Court filed 19 November 2021, the appellant advances two grounds of appeal together with an affidavit sworn by the appellant and prepared by his former solicitor, exhibiting a transcript of the Tribunal hearing, the Tribunal’s reasons, the “further, further amended application” filed in the FCFCoA and the primary judge’s decision.

42    By ground 1 and its particulars, the appellant contends:

1.     The Federal Circuit Court of Australia erred in failing to find that on the evidence before it, the Tribunal denied the Appellant procedural fairness by not adjourning the hearing for another day and in doing so, deprived the Appellant an opportunity for a fair hearing.

In that:

a.    “The Tribunal is given power to adjourn proceedings from time to time ... An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the Tribunal has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of the Constitution.”

b.    An unreasonable refusal of an adjournment would mean that the Tribunal had not conducted its review function in a way which was “fair”, that being a requirement of ss 353 and 357A(3) of the Act.

c.    In Minister for Immigration and Citizenship [2013] HCA 18, Chief Justice French stated at (10) and (11) as follows:

d.    To avoid repetition, the Appellant repeats the Particulars to Ground Six in the document marked and annexed as “MMS3” in the accompanying affidavit of the Appellant.

e.    As opposed to d. above, his Honour in the Court below erred in not accepting the facts as stated therein and dealt with some of the facts as stated below. I will come to this after citing certain passages from the judgment of the High Court of Australia in Minister for Immigration v Li [2013] HCA 18 (8 May 2013). Chief Justice French stated at (10) the role of the Tribunal as follows:

“10.     Section 348 provides that if an application for review of an MRT-reviewable decision is properly made “the Tribunal must review the decision.” It may, for the purposes of the review, “exercise all the powers and discretions that are conferred by this Act on the person who made the decision.” It is well established that the reviews that both the MRT and the Refugee Review Tribunal (“the RRT”) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal (“the AAT”), described by Brennan J in Bushell v Repatriation Commission as:

“an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.” (Emphasis added).

“As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings. There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to legislative objectives including timeliness in its processes.”

And at (11), the Chief Justice continued:

“11.     Division 4 of Pt 5 of the Act is entitled “Exercise of Tribunal’s powers”. It commences with s 353, which provides:

“(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits of the case.”

The objective set out in s 353(1) is replicated, in relation to the administration of the MRT, in s 397(2)(a), which defines one of the responsibilities of the Principal Member of the tribunal as “monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable”.

f.     I now return to the judgment of his Honour in the Court below. I refer to the relevant paragraphs from the judgment so that consideration may be given to the words of Chief Justice French (stated above) with a view to concluding whether his Honours views might be in accord with those words or not.

At (11) of the Judgement [sic] below

i.     In the instant case both (husband and wife) Mr Amit Baijal and Mrs Baijal acted as migration agents for the Appellant before the Tribunal. In this context there can be no doubt at all that they were both acting for the Appellant in respect of the hearing before the Tribunal.

ii.     Any contention that they were not so acting cannot be sustained when read against (11) of the judgement [sic] in the Court below. It states that the [sic] on 4 October 2017 a person named Danni Sabharwal sent an email to the Appellant stating that Mr Amit Baijal was overseas and upon his return “...Mr Baijal will be assisting you with this application. As he is currently overseas, he will contact you upon his return to discuss the case and prepare further documentation in support of this application.”

iii.     Nothing happened despite the email referred to at ii above.

iv.     It is significant to note that the email referred to at ii above was sent to the Appellant only 23 days prior to the Tribunal hearing.

v.     In the light of above any contention that the migration agent had indicated that he or she would not attend the Tribunal hearing cannot be sustained.

vi.     Relevant to the above are (12) - (21) of the judgment.

(Emphasis in original, footnotes omitted).

43    By ground 2, the appellant contends:

The Court below erred in failing to find whether the Second respondent’s refusal to adjourn was unreasonable or plainly unjust.

The Appellant repeats the particulars for the first ground.

Consideration

44    By ground 1, the appellant contends that the primary judge erred in failing to find that the Tribunal had denied him procedural fairness by not adjourning the hearing and had deprived him of an opportunity for a fair hearing. By ground 2, the appellant claims that the primary judge erred by failing to find the refusal of an adjournment was “unreasonable or plainly unjust”.

45    Both appeal grounds reveal a misunderstanding of what the primary judge in fact did: The primary judge refused the appellant leave to argue this new ground (then proposed ground 6) on the basis that it was unarguable: at J[30]–[33] (extracted at [29] above), the primary judge did not determine the issues as framed by these appeal grounds.

46    For the reasons which follow both appeal grounds must fail.

Ground 1

47    By way of summary, ground 1 fails primarily for three reasons:

(a)    the primary judge was correct to refuse leave for the appellant to argue the new procedural fairness ground (proposed ground 6) before his Honour;

(b)    even if leave should have been granted, it would not have succeeded because:

(i)    the Tribunal had no obligation to interrogate the appellant as to the reason for why he had no representation in the circumstances; and

(ii)    in any event the appellant did not fall within the eligibility criteria for the student visa; and

(c)    even if the ground did succeed, the error could not in the circumstances have been material.

48    By reason of the primary judge refusing the appellant leave to argue this new ground (then proposed ground 6) on the basis that it was unarguable, the appellant is appealing a decision involving an exercise of discretion for which the appellant must establish that the primary judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts or failed to take into account some material consideration. It is not enough that the appellate court considers it would have taken a different course if it had been in the position of the primary judge: SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [45] (per Gleeson J) citing House v The King [1936] HCA 40; 55 CLR 499 at 504 – 505 and Sudan v Minister for Immigration and Border Protection [2015] FCA 90 at [28]. If a proposed ground is not arguable it is not only relevant to the exercise of the discretion but disposes of it: SZSRR at [48]–[54]. No error of the kind necessary can be found in the primary judge’s reasons.

49    Before the primary judge, the appellant submitted that the purported denial of procedural fairness arose from, amongst other things, three assumed facts: (a) the migration agent had completed the relevant Response form (particular (a) to proposed ground 6); (b) the agent had indicated on that form that the agent would appear (particular (a) to proposed ground 6); (c) the Tribunal failed to ask why the agent was not present at the hearing (particular (c) to proposed ground 6). Assumed facts (a) and (b) were entirely contradicted by the contemporaneous documentary evidence. Prior to the Tribunal hearing, the appellant filled in the Response form and indicated that his representative would not be attending: at J[13]–[14], [30]. The primary judge concluded the same (at J[13]–[14], [30]), the appellant raises no appeal ground impugning those findings and appeared at hearing to accept the same.

50    As to (c), in a literal sense, the Tribunal did not interrogate or query why the agent was not present. In the appellant’s 21 October submissions, he contended that if the Tribunal Member “was not sure if [he] was represented or not, she could have questioned [him] further in this regard and could have adjourned the hearing and may have confirmed [with him] to be certain with representative’s presence [sic]” (emphasis added). I do not accept this submission. There was no reason as to why the Tribunal was required to and therefore “failed” to inquire. The Tribunal noted, consistent with the contemporaneous evidence, as contained in the Response form, that the applicant had a representative but she was not in attendance. The appellant conceded on appeal that he had filled out, signed and sent the Response form back to the Tribunal but says he did so “blindly” on instructions from his migration agents. There was nothing to indicate to the Tribunal that the state of affairs was anything other than that the appellant was unrepresented and had no representative with him. I accept the Minister’s submission that at no point during the Tribunal hearing did the appellant apply for an adjournment nor inform the Tribunal as to his difficulties arising from the absence of his representative. The Tribunal cannot be attributed with the allegation of a failure to act or take some circumstance into account if no application was made nor the circumstances drawn to its attention.

51    The appellant also relied, on appeal, on parts of the Tribunal transcript. The transcript records the exchange between appellant and the Tribunal at the commencement of the hearing regarding representation which is as follows (as referred to by the primary judge at J[19]):

[Tribunal Member]:     Thank you. You have a representative but she’s not here with you today?

APPLICANT:        Yes.

52    The appellant relied on an exchange between himself and the Tribunal at the conclusion of the hearing when the Tribunal Member asked about representation for the purpose of working out where to send the decision. I do not consider this exchange assists the appellant. Again the issue of representation was raised by the Tribunal Member and the appellant made no application nor raised his purported difficulties. Further, to the extent that the appellant submits that his reference on the Response form to Mrs Baijal not attending when he claims he understood Mr Baijal was attending, again, was not something known by the Tribunal. Furthermore, during the two exchanges his representative was referred to by the Tribunal Member using the female pronoun and this was not corrected by the appellant. In the second exchange, when asked whether the decision should go to “[his] representative, Mrs Baja [sic]”, the appellant replied in the affirmative.

53    In the appellant’s 21 October submissions, he referred to a further exchange between himself and the Tribunal where the Tribunal Member had asked about whether he was working and then whether he held work rights. The appellant contended, based on having held a Bridging Visa A (which provides work rights), that the Tribunal Member presumed that he did not have work rights and therefore “did not look into [his] file in a ‘Fair and just’ manner.” This allegation did not form part of the judicial review application before the primary judge. No application was made for this new ground to be raised on appeal nor how it fits within that special category of case where the “interests of justice” demand that it be raised: see O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]–[94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].

54    To the extent that there was some challenge to the primary judge’s findings, the appellant claims at particular (f) to ground 1 (extracted at [42]). However, even if these particulars were accepted, noting the primary judge accepted them in one respect (that Ms Sabharwal sent the appellant an email (as extracted at J[11])), they provide no answer to the fatal flaws in the appellant’s argument. First, even if it were accepted that the appellant anticipated being represented at the hearing by a migration agent, the appellant made no application to the Tribunal nor informed the Tribunal as to this circumstance. Secondly, the fact of being informed by Ms Sabharwal of being provided with “assistance” does not mean, on its face, that the appellant was to be represented at the Tribunal hearing. The appellant could not be represented by someone who advocated on his behalf except in exceptional circumstances: s 366A(2) and (3) of the Act.

55    As to the appellant’s contention that after receipt of this email “Nothing happened” is conjecture which the primary judge did not accept. The primary judge found, at J[17], that he did not accept that the appellant had made arrangements with Mr Baijal that Mr Baijal attend the hearing before the Tribunal. The primary judge rejected the argument on three bases, as set out at J[17]–[21].

56    Accordingly, on the facts, the primary judge was correct to conclude that proposed ground 6 was “not arguable” as it was grounded on factual assertions which were inconsistent with the contemporaneous evidence: at J[30].

57    The appellant sought leave at the hearing pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on fresh evidence on appeal, being call records retrieved in September 2021 and the other document which described the terms used in the call records. This fresh evidence was not before the Tribunal or the primary judge. The Minister opposed that application.

58    The Court has power to admit fresh evidence on appeal: see s 27 of the Federal Court Act. The power to admit further evidence is remedial and to ensure that proceedings do not miscarry. No formal application for leave was made pursuant to r 36.57 of the Federal Court Rules 2011 (Cth) which sets out the requirements for an application seeking that the Court receive fresh evidence on appeal. As observed by a Full Court of this Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 (Markovic, Thomas and Halley JJ) at [12]:

…

In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).

59    In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42], the Full Court observed that it is not enough that the new evidence was relevant, admissible and may have affected the result but rather the evidence must be such “that very probably the result would have been different”. For the following reasons, I refuse the application for the appellant to rely on the call records and the other document.

60    First, there is no corresponding admissible evidence that would confirm that the call records are those of the appellant and that the purported telephone number of Mr Baijal was that identified by the appellant at hearing. Without that corresponding evidence, and without evidence proving these records are what the appellant claims them to be, the evidence is of no utility. The appellant, within his 21 October submissions included (without explanation, presumably to prove that the purported telephone number was Mr Baijal’s) what may be a screenshot of a website advertising Mr Baijal’s migration agency (which includes a mobile phone number consistent with the appellant’s submission). This does not constitute admissible evidence. The consideration that the further evidence is irrelevant is decisive (s 56 of the Evidence Act 1995 (Cth); and see NASB at [34], [54] and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [38]).

61    Secondly, even if it were accepted that the proposed evidence did in fact evince telephone calls between the appellant and Mr Baijal, the day before and the day of the Tribunal hearing, without evidence of what was said during those calls, the evidence could be of little utility (again indicative of inadmissibility).

62    Thirdly, and perhaps more critically, I am not satisfied that, had these records been before the primary judge, they would have made any difference to the outcome. Again, the question of whether the Tribunal denied the appellant procedural fairness or was legally unreasonable required the Court to consider what information or knowledge was before the Tribunal.

63    Lastly, it appears that the appellant could, with reasonable diligence, have adduced this evidence in the FCFCoA where the appellant was represented such that whether there had been a want of reasonable diligence on the part of an unrepresented litigant (as in SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 at [57], [60]) is of no application in this case.

64    The appellant’s argument, in relation to ground 1 generally, is not assisted by the High Court’s reasoning in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. In that case the circumstances were materially different, there the migration agent specifically requested that the Migration Review Tribunal defer making a final decision regarding the review application until the outcome of a skills assessment was finalised: at [3]. Accordingly the reasoning concerned a request for an opportunity to obtain evidence of fact and a rejection of that request, neither of which arise here.

65    Finally, even if there were error on the part of the Tribunal, which I have found there was not, the evidence before the Tribunal, as accepted by the appellant on appeal, was that he was not enrolled in a course of study nor had an offer of enrolment (at [7] of the Tribunal decision). In addition, the Tribunal found that the appellant was not an “eligible VET student” (at [14] of the Tribunal decision). Accordingly, at the time of the Tribunal’s decision, the appellant could not have satisfied the requisite criteria for a student visa under cl 572.223 of the Migration Regulations (extracted above at [23]).

66    The fact of this ineligibility is dispositive of both appeal grounds. With respect to ground 1, even if the primary judge had granted the appellant leave to rely on proposed ground 6, and it were satisfied that the Tribunal fell into error as alleged by the appellant, the error could not have had the effect of there being a realistic possibility that the Tribunal’s decision could have been different such that it was material: Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32] (per Kiefel CJ, Keane and Gleeson JJ) and [45]–[46] (per Gageler J).

67    In this case, even if the Court was satisfied that there was a denial of procedural fairness as alleged by the appellant, that error would not be material. This is because the appellant could not have demonstrated that he could have achieved a favourable outcome if he had been given an adjournment and had a representative at a later Tribunal hearing. His ineligibility for the student visa under cl 572.223 plainly leads to the conclusion that no evidence or submissions by a legal representative could have affected the Tribunal’s decision.

Ground 2

68    By ground 2, the appellant claims that the primary judge erred by failing to find that the Tribunal’s refusal to adjourn was “unreasonable or plainly unjust”. This ground fails for the following reasons.

69    A discretionary power which is conferred by statute (here the power to adjourn) is subject to the implied condition or presumption that it be exercised reasonably. Where there is an absence of reasonableness, there is a failure to exercise the discretion within jurisdiction (namely the committing of jurisdictional error). The relevant principles regarding legal unreasonableness were distilled by the Full Court in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [129]–[138]. In particular it is noted, as identified by the Full Court at [132], that the Court’s task is supervisory in determining whether a decision is vitiated for legal unreasonableness. By “supervisory” the Court is not involved in reviewing the merits of the decision under the guise of evaluating reasonableness nor may it substitute its own view as to how the decision should have been exercised. It is not clear which species of “unreasonableness” the appellant is arguing – a conclusion after the identification of a recognised form of jurisdictional error or “an outcome focused” conclusion (see at [133]) – it appears likely it is the latter. If it is so, in BHL19 at [134], the Court noted, the difficulty of making such a claim – where reasonable minds may differ as to the correct decision or outcome then no such claim of legal unreasonableness may be made.

70    Regardless of how the appellant may have made such a claim, I cannot see how such a claim can be made out where there was no “refusal” to adjourn for the reasons set out with respect to ground 1. I rely on my reasons with respect to that ground as establishing why this ground should also fail. There was no error in the Tribunal’s procedure such as to fall outside the bounds of its decisional freedom under s 40(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) and under ss 424AA(1)(b)(iv) and 427(1)(b) of the Migration Act (in relation to the power to adjourn) or more generally the Tribunal’s power under s 424(1) to seek further relevant information.

71    As to materiality, I rely on my reasons above in relation to why, had it been unreasonable for the Tribunal not to grant an adjournment, there was no realistic possibility that, as a result of such an adjournment, the Tribunal’s decision could have been different.

Conclusion

72    For these reasons, the appeal should be dismissed with costs.

Associate:

Dated:    4 November 2022