Federal Court of Australia

EUE20 v Minister for Immigration and Citizenship [2026] FCA 1312

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Bangladesh who, on 24 July 2012, arrived in Australia on a student visa. His application for a further student visa was refused on 31 May 2016. On 18 October 2016, the appellant applied for a protection visa. That application was refused on 1 February 2017 by a delegate of the Minister for Immigration (Minister).

2    On 24 February 2017, the appellant sought review of that decision from the Administrative Appeals Tribunal (Tribunal). The appellant was represented throughout the conduct of those proceedings and at the hearing on 5 August 2020. On 13 October 2020, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. Via an amended application filed on 25 February 2025, the appellant appealed to the Federal Circuit and Family Court of Australia. The primary judge found that none of the pleaded grounds disclosed jurisdictional error and dismissed the application: EUE20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 497. The appellant appeals that decision.

3    The grounds of appeal before this Court are as follows:

(1)    The primary judge erred by making findings which were irrelevant and/or upon which there was no evidence;

(2)    The primary judge gave such undue weight to the representation of the appellant at an inquisitorial hearing as to amount to an error;

(3)    The primary judge’s findings that there was intelligible justification for the Tribunal refusing further time itself lacked coherent and intelligible justification and was based on speculation;

(4)    The primary judge failed to engage with the appellant's contention that there was a definite date on which the medical report would be provided and there was only a minimal delay in circumstances where the Tribunal had itself been responsible for considerable delay since the decision of the delegate under review by the Tribunal; and

(5)    The primary judge erred in determining that the appellant failed to attain natural justice by the Tribunal.

4    For the reasons below the appeal is dismissed.

Factual Background

5    The five grounds of appeal overlap. Each is directed to the Tribunal’s decision not to grant the appellant an extension of time to provide a psychological report, in relation to a request made of the Tribunal on 28 September 2020.

6    Given that, it is appropriate to refer in more detail to the procedural history of this matter.

7    As explained above, on 24 February 2017 the appellant lodged an application for review of the delegate’s decision with the Tribunal. On 26 February 2020, the Tribunal invited the appellant to a hearing scheduled for 2 April 2020, which was subsequently postponed due to the COVID-19 pandemic. On 25 June 2020, the Tribunal invited the appellant to appear before the Tribunal at a hearing to be conducted by video conference on 5 August 2020, which he attended. The appellant was represented at all relevant times.

8    The day after the hearing, on 6 August 2020, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (Act), inviting him to comment on or respond to information. The particulars of the information were that “[t]he audio recording of [the appellant’s] interview with a Delegate of the [Minister’s] Department indicate[d] that [he] claimed to have been elected to the position of Vice-President [of the student wing of the Bangladesh Nationalist Party (BNP)] in 2011”. The Tribunal noted this information was relevant because it was inconsistent with information in the appellant’s written claims, oral evidence to the Tribunal, and a letter of support provided by the Secretary General of the BNP in Bangladesh, that he was elected to the position of Joint Secretary of the BNP in 2011. I note that the Tribunal’s reasons record that this information was put to the appellant during the hearing, and he asked for an adjournment: T[52]. On resuming, the appellant’s representative requested that he be permitted to provide an answer in writing. The Tribunal granted the appellant 14 days to respond, but no answer was ultimately provided.

9    On 26 August 2020, the appellant’s representative wrote to the Tribunal indicating the appellant had been referred to a psychologist, and had an appointment on 21 September 2020. The appellant’s representative requested the Tribunal provide the appellant with “an opportunity to file a report regarding his mental state after 21 September 2020”. The appellant’s representative attached the following documents: (1) a statutory declaration from the appellant in which he claimed that he was mentally and psychologically affected by his experiences in Bangladesh and feared returning; (2) a copy of a general practitioner (GP) mental health treatment plan, which indicated that the appellant presented with anxiety, depression and stress, and noted a suicide attempt in 2014; and (3) a letter of referral from the GP to a psychologist “for opinion and management, counselling”.

10    On 1 September 2020, the Tribunal emailed the appellant (by his representative) granting the appellant “a final extension of time until 28 September 2020” to provide a psychologist’s report. The Tribunal also noted the appellant had not responded to the s 424A invitation to comment on the identified information and provided an extension until 28 September 2020 to do so.

11    On 23 September 2020, the appellant’s representative requested a further extension of time until 26 November 2020 to file a report “regarding his mental state” and provided a further statutory declaration from the appellant, and a letter from a forensic psychologist that stated:

Initial assessment of Mr. Jaber indicates that he is experiencing symptoms consistent with a diagnosis of Depression, Anxiety and Stress in the Extremely Severe range. Mr. Jaber has applied for to humanitarian vis as he was deeply involved in politics in Bangladesh. On his last visit Bangladesh he was physically attacked due to his political affiliation. Mr. Jaber stated that he fears for his safety and his life if he is to return to Bangladesh. He has been severely depressed and has attempted elf harm multiple times and has attempted suicide in the past.

Mr. Jaber has an appointment with myself on the 2nd of November for a detailed assessment for the purpose of ascertaining the psychological symptoms. A report is requested which will be available on the 26th of November.

12    On 24 September 2020, the Tribunal sent an email to the appellant’s representative requesting an explanation by 28 September 2020 as to the relevance of a further report from a psychologist. On 28 September 2020, in response, the appellant’s representative requested a further extension:

Thank you for email in regard to relevance for psychologist report.

We respectfully submit that the presiding member requested this report after the hearing based on the fact exhibited during the hearing.

We state that the applicant attempted suicide in the past.

We strongly believe his current mental state is a product of persecution he experienced in Bangladesh. He was subject to oppression by political opponents in Bangladesh.

Furthermore, we submit that the applicant is going to be persecuted in addition to convention regard for the status of mental conditions.

Therefore, we request you please consider the above in extending the time after 23 November 2020.

13    On 2 October 2020, the Tribunal declined to grant a further extension of time but indicated that it would take into account any further medical evidence provided until the time of decision. The Tribunal in its email to the appellant’s representative stated:

The Presiding Member has considered the submission and has decided not to grant the request, as the applicant has already been given sufficient time since the date of the hearing to provide the psychologist’s report. However, please note that the member will consider any further medical evidence provided until the time of decision.

14    On 13 October 2020, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal at T[76]-[78] of its reasons sets out the contents of its email notifying the appellant of the refusal of the extension and the reasons for reaching that decision (recited in the primary judgment at J[16]):

Mental Health

[76]    As outlined above the applicant’s representative has submitted that a psychological assessment report was requested by the Tribunal after the hearing based on the facts exhibited during the hearing. It is submitted that the applicant attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh. It is also submitted that the applicant is going to be persecuted in addition for the status of his mental health condition.

[77]    Firstly, contrary to the representative’s submission the Tribunal did not request that a psychological assessment report be provided. Rather, the representative asked for further time in order for the applicant to consult a psychologist. During the hearing the Tribunal queried the value of him doing so, expressly noting that the production of a psychological report at this stage of the proceedings would not establish a history of treatment for a diagnosed condition. Regardless, the Tribunal agreed to wait until 26 August 2020 for the submission of medical reports. On 26 August 2020 the Tribunal was advised that two days prior, the applicant had only just attended a consultation with his general practitioner. Nevertheless, the Tribunal subsequently granted an additional extension of time for a psychological assessment report to be provided by 28 September 2020. On 23 September 2020 the Tribunal was advised that the earliest date it could expect to receive the report is 26 November 2020. On 2 October 2020 the Tribunal declined the request for a further extension of time to produce a psychological report but informed the applicant that any further information provided prior to the time of decision would be taken into consideration. The Tribunal received no further information from the applicant. For reasons outlined below the Tribunal has decided to proceed with the review in the absence of a further report.

[78]    During the hearing the applicant advised the Tribunal that he made a suicide attempt in 2014. His representative has submitted that his condition is a result of the political persecution he suffered in Bangladesh but as can be seen from the above reasoning the Tribunal is of the view he did not suffer any past harm for the reasons claimed. The available medical reports also draw a connection between the applicant’s mental health and his claimed fears of returning to Bangladesh on account of his past experiences and future fears. However, the Tribunal considers those remarks are merely a repetition of information relayed to the medical professionals by the applicant himself. The Tribunal accepts the applicant may be suffering from depression, anxiety and stress and that a further psychological report will likely re-confirm this. For this reason, and given the amount of time already afforded to the applicant to provide another report, the Tribunal but did not see any benefit in delaying the outcome of the review unnecessarily by waiting for a further psychological assessment. The Tribunal accepts, on the available information, that the applicant did attempt suicide in 2014 but is unable to conclude that it was due to any past harm he suffered in Bangladesh.

Consideration

15    Given the overlap in the grounds, the appellant’s submissions addressed them together rather than individually. It is appropriate to follow that approach in these reasons. The primary grounds are 1 and 3, which are appropriate to address together. Although the other grounds were separately pleaded, as argued they are also relevant to the submission underlying grounds 1 and 3, that the decision was legally unreasonable.

Ground 1: the primary judge erred by making findings which were irrelevant and/or upon which there was no evidence

Ground 3: the primary judge’s findings that there was intelligible justification for the Tribunal refusing further time itself lacked coherent and intelligible justification and was based on speculation

16    The appellant’s written submission on grounds 1 and 3 is that “[t]here was no basis on which her Honour could conclude that an assessment report would not be relevant to credibility”. This is in reference to the further psychologist’s report the appellant sought an extension of time to provide.

17    It is helpful at this stage to address the primary judge’s reasoning. At the outset of her Honour’s consideration, her Honour noted at J[7]-[8]:

[7]    The applicant’s Counsel contended that the Tribunal erred in exercising its discretion unreasonably in refusing to provide further time for the applicant to put on medical evidence from a psychologist, which evidence was said to be relevant to:

(a)    Whether there was probative evidence of a casual link between the applicant’s mental health issues and his claims of past persecution.

(b)    Whether it might affect the Tribunal’s assessment of the applicant’s credibility ([7] of the applicant’s written submissions filed 25 February 2025 (AWS)).

[8]    The applicant also submits that the applicant “was not really claiming at all that his mental health would be a source of persecution in the future” ([8] AWS). Therefore, although the applicant’s migration agent and solicitor did give this reason as an additional reason for the relevance of the psychologist’s report to the Tribunal, the applicant’s Counsel did not press that as a valid reason at the hearing before me. Therefore, I will not deal with that reason given to the Tribunal as to the relevance of the psychologist’s report, except to note that the Tribunal noted at [79] to [82] that additional Convention claim and dealt with it on the basis that the Tribunal accepted the applicant may be experiencing some depression, anxiety and stress, but found on the basis of the country information and the applicant’s evidence that he was from a middle class family and had family support in Dhaka, where better mental health services are available.

18    These paragraphs reflect the approach taken by the appellant before the primary judge, and the issues addressed in her Honour’s reasons. The primary judge addressed the issue of the relevance the psychologist’s report to the Tribunal’s decision at J[13]-[27].

19    Significantly, after an analysis of the proceedings in the Tribunal, the primary judge concluded, inter alia, at J[24]-[25]:

[24]    Given that the applicant was represented by a solicitor and a migration agent, who was squarely asked to provide the relevance of the further psychologist report sought to be obtained, it was reasonable for the Tribunal to determine the application for further time within the confines of the reasons provided. The Tribunal’s conduct in acting reasonably may well have been different if the applicant had not been represented and depending on the sophistication of the applicant as a self-represented litigant. However, in this case the applicant was represented by a solicitor and a migration agent and the Tribunal was acting reasonably in determining whether to grant the further time having regard to the specific reasons provided by the applicant’s representative as to the relevance of the psychologists report.

[25]    I find the applicant’s representative had not told the Tribunal that the further report was also relevant to proving that the applicant’s current mental health affected the evidence he gave at the Tribunal hearing and therefore was relevant to the Tribunal’s assessment of the applicant’s credibility. Given the applicant was legally represented at the Tribunal hearing, and no such relevance was alluded to, it was reasonable for the Tribunal not to consider the evidence was relevant to issues of the applicant’s credibility. Further, the Tribunal could not have been expected to be so alerted to the fact that the psychologist’s evidence might be relevant to credibility, because the psychologists own letter said that the applicant was being seen so the psychologist could ascertain the applicant’s “psychological symptoms”. Fairly read, this meant that the psychologist was to provide an opinion as to the applicant’s symptoms, being depression, anxiety and stress, which symptoms the Tribunal accepted.

(emphasis in original)

20    There are two matters in J[25] to highlight. First, the submission before the primary judge relevant to this ground – that the psychologist’s report was relevant to the appellant’s credibility – was not put to the Tribunal. That finding by the primary judge was not challenged in the appellant’s written submission. Second, the primary judge observed that the Tribunal in making its assessment of whether to grant the extension accepted the appellant had symptoms of depression, anxiety and stress. This is reflected in the Tribunal’s reasons at T[78] recited above, that:

The Tribunal accepts the applicant may be suffering from depression, anxiety and stress and that a further psychological report will likely re-confirm this. For this reason, and given the amount of time already afforded to the applicant to provide another report, the Tribunal but did not see any benefit in delaying the outcome of the review unnecessarily by waiting for a further psychological assessment.

21    Further, a consideration of the Tribunal’s reasons more broadly reflects it accepted the appellant may be suffering those psychological conditions: see e.g. T[64], [70] and [80]. Again, the appellant has not challenged the finding by the primary judge that the Tribunal adopted that approach.

22    I return to these matters below.

23    In that context, the primary judge at J[26] also addressed the submission made at the hearing before her Honour, that the psychologist’s report may have provided opinion evidence as to the consistency of the appellant’s current condition with his past history and therefore may be corroborative evidence of the appellant’s evidence as to his claims. The primary judge at [26] rejected the submission for much the same reasons as in [25], as this was not advanced before the Tribunal. The primary judge concluded at J[26]-[27]:

[26]    Further, the applicant’s Counsel submitted at the hearing before me, that the psychologist report may have provided opinion evidence as to the consistency of the applicant’s current condition with past history and therefore may be corroborative evidence of the applicant’s evidence as to his claims. As noted by Drummond J in Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255 at [34], such evidence may be corroborative and relevant. However, the difficulty for the applicant in this case, is that as I have said he was represented by a solicitor and a migration agent and when the Tribunal asked the representative to articulate the relevance, the solicitor and migration agent did not tell the Tribunal that the psychologist’s report may be relevant as being opinion evidence as to the consistency of the applicant’s current condition with past history and therefore be corroborative. Rather, the applicant’s representative said, “we strongly believe his current mental state is a product of persecution he experienced in Bangladesh”. This is quite different from saying that the psychologist’s opinion was sought as to the consistency of the applicant’s current condition with past history. Further, the psychologist’s letter provided to the Tribunal said the applicant was being seen so the psychologist could ascertain the applicant’s “psychological symptoms”. The psychologist did not say an opinion was sought as to the consistency of the applicant's current condition with past history and that such opinion could be provided. Given these matters, it was reasonable for the Tribunal to think that the psychologists report was being obtained to ascertain the applicant’s psychological symptoms.

[27]    Against this backdrop, I find the Tribunal did engage with the reasons provided by the applicant’s migration agent and solicitor as to the relevance of the psychologists report and provided a reasonable evident and intelligible justification for refusing further time, being that the psychologist’s report was likely to reconfirm that the applicant was suffering from depression, anxiety and stress and given that the Tribunal accepted that the applicant may be suffering from those psychological symptoms, there was no benefit in delaying the outcome of the review.

24    Against that background I turn to the Tribunal’s refusal of the application made on 28 September 2020 for a further extension.

25    The primary judge recognised at J[17] that the failure to accede to a reasonable request for an adjournment can constitute procedural unfairness, referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [19] (French CJ). And at J[18], that the Tribunal had a discretion to adjourn the review. Her Honour observed that to determine whether the Tribunal’s decision to refuse the further time was reasonable, in the sense of having an evident and intelligible justification, it was necessary to consider the Tribunal’s consideration of the application for further time having regard to the reasons given by the appellant’s solicitor and migration agent: J[18]. Her Honour then undertook that analysis at J[19]-[27].

26    It is timely to also observe, as the Minister submitted, the Tribunal is under no obligation to afford every opportunity to an appellant for review to present his best possible case and to improve upon the evidence. It is also acceptable for the Tribunal to decide, in appropriate cases, that ‘enough is enough’ where it is apparent how the conclusion to refuse an adjournment was reached: see Li at [82] (Hayne, Kiefel and Bell JJ). In a case where an applicant seeks more time in which to provide evidence to the Tribunal, that may in turn require the Tribunal to consider the matters placed before it by the applicant to explain why he or she requires more time. That would generally include matters relating to the further evidence that is to be supplied, the reason that the evidence has not been provided to date, and the length of time required: Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [32].

27    The threshold for legal unreasonableness is high: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 54 (SZVFW) at [11], [52], [89] and [135], cited in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]. The “test for unreasonableness is necessarily stringent”, and “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: SZVFW at [11], and at [52], [89], and [135].

28    At the outset I observe that the appellant contends that the only reasons provided by the Tribunal for the refusal of the extension are contained in the email notifying the appellant of its decision, referred to above at [13]. I do not agree. The primary judge accepted the reasons of the Tribunal are those in T[76]-[78] of its decision, recited above at [14]: J[19]. No error has been established in that finding. Those paragraphs plainly provide reasons for the Tribunal’s decision. It follows that the consideration of the appeal grounds proceeds on that basis.

29    First, having considered the Tribunal’s reasons, the primary judge concluded that the Tribunal accurately recorded the reasons provided to it by the appellant’s solicitor and migration agent as to the relevance of the further psychologist’s report: J[20]-[23]. The primary judge identified the reasons put by the appellant’s solicitor and migration agent at J[20]:

The Tribunal records at [76] of its reasons that the applicant’s solicitor and migration agent submitted that the further psychologist’s report was sought to be provided for three reasons, being:

(a)    First, that the Tribunal had requested the further [report] after the hearing based on the facts exhibited during the hearing.

(b)    Second, the applicant’s attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh.

(c)    Third, the applicant is going to be persecuted in addition for the status of his mental health.

30    As the primary judge concluded, the Tribunal’s addressed those reasons put forward in the letter. As apparent from the discussion above, the primary judge concluded it was reasonable for the Tribunal to determine the application for further time within the confines of the reasons provided: J[22], [23].

31    Second, the appellant submitted at the hearing that, in effect, the first of the reasons raised by the appellant’s solicitor in the letter of 28 September 2020 to the Tribunal should have been interpreted by the Tribunal as going to the assessment of the appellant’s credibility in relation to the evidence he had given in the Tribunal hearing. As apparent from the discussion above, the primary judge concluded at J[25] that the submissions advanced before her Honour, as to the relevance of the report to credibility, were not put to the Tribunal. The appellant did not address J[25] in his submissions, until asked about it by the Court during the hearing. His submissions did not address her Honour’s reasons for making that finding. Nor did the submissions address the attachments which were provided by him in the email sent to the Tribunal, which included a letter from the psychologist reflecting on what the report would address, recited at [11] above: see also J[25], [26]. I note also, as apparent from the Tribunal’s reasons, that at the hearing the appellant’s representative asked for time to provide a psychological report. At that time the Tribunal queried its value, as a report at that stage of the proceedings would not establish a history of treatment for a diagnosed condition: T[77]. There is no suggestion in the Tribunal’s reasons, or in the appellant’s submissions, that any issue of credibility was raised before the Tribunal. The letter of 28 September 2020, and the manner any psychological condition was relied on in the hearing, must be seen in that context.

32    In support of the submission, the appellant also submitted at the hearing that inconsistency in his evidence was a matter of concern for the Tribunal, which was said to highlight that credibility was an issue in contention in the proceedings. In this regard, the appellant referred to the s 424A invitation sent to him on 6 August 2020, recited above at [8]. The context of this invitation, as apparent from the Tribunal’s reasons at T[52], was that the Tribunal raised the topic with the appellant, who then sought a brief adjournment before responding. After the adjournment his representative requested the appellant be given an opportunity to respond to the information in writing, which was granted. However, the appellant did not provide a response to that request, even though the Tribunal extended the time for the appellant to do so. Significantly, the appellant did not provide the Tribunal with any explanation that his mental health was an issue which may affect the assessment of his credibility. Nor did he inform the Tribunal the psychological report he sought was relevant to assist in resolving that purported issue. One would expect those matters to have been raised at that stage, if they were a reason why the appellant sought to provide the report to the Tribunal.

33    As explained above, the primary judge concluded at J[25] the appellant’s representative had not told the Tribunal the further report was relevant to the Tribunal’s assessment of his credibility. The primary judge also concluded that in the circumstances, as her Honour explained, it was reasonable for the Tribunal not to consider the evidence was relevant to issues of his credibility. No error has been established in those conclusions.

34    Third, the appellant submitted that the Tribunal proceeding on the basis the appellant had the symptoms of depression, anxiety and stress, was insufficient, as it was the effect of the symptoms on his evidence which was relevant. However, as the primary judge pointed out, the psychologist in his letter explained that the detailed assessment was for the “purpose of ascertaining the psychological symptoms”: J[12], and see [26]. The primary judge concluded, based on the matters addressed in J[26] (which included the letter from the psychologist), that it was reasonable for the Tribunal to think that the psychologist’s report was being obtained to ascertain the appellant’s psychological symptoms: J[26]. No error has been established in that conclusion.

35    Fourth, the appellant submitted orally that T[78] reflects the Tribunal had prejudged the issue of his evidence. That finds no support in T[78]. The submission does not grapple with the content of that paragraph, or the Tribunal’s reasons read as a whole. For example, the appellant did not address this paragraph in the context of the Tribunal’s reasoning as to why the basis of his claims for a protection visa were not accepted.

36    Fifth, the appellant submitted in writing the primary judge treated the fact he was represented by a solicitor throughout the Tribunal proceedings and at hearing “as determinative”, and “the letter from the representative as if it was like the words of a statute”. The primary judge referred to the appellant being represented at J[24], [25] and [26]. In writing, the appellant submitted that “undue weight” was placed on the fact of representation. That the issue was advanced as one of weight, accepts that the fact of representation, in the circumstances, is a relevant consideration in assessing whether the Tribunal’s decision was legally unreasonable. However, in oral submissions, the appellant contended that his being represented should have been treated as irrelevant. I accept the Minister’s submission, that in the circumstances of this case, the Tribunal was entitled to ask the appellant’s legal representative to indicate the relevance of the further psychologist’s report sought to be obtained and was entitled to proceed, as it did, by reference to the information provided by the appellant’s legal representative. Those reasons, and the circumstances in which they were provided, are matters relevant in assessing whether the refusal was reasonable. They were addressed by the Tribunal in exercising its discretion to refuse the extension. Contrary to the appellant’s submission, the primary judge did not place “undue weight” on the fact of his representation.

37    Sixth, the appellant in the hearing raised a submission based on relativity. That is, given the Tribunal review had taken around three and a half years from the date of filing the application, the additional six weeks sought were a relatively short period of time to delay the decision. However, given the reasons of the Tribunal and the primary judge’s consideration thereof, it is readily apparent there was a time indicated to the appellant by which the report was to be provided, being 26 November 2026. The decision to refuse a further extension was made in light of that knowledge, as was the primary judge’s assessment of whether the appellant had established the Tribunal’s decision in refusing the extension was unreasonable. I accept the Minister’s submission that the fact that there was a delay between the date on which the appellant lodged his application with the Tribunal (24 February 2017) and the date of the hearing before the Tribunal (5 August 2020) does not render unreasonable the Tribunal’s rejection of a further extension of time in which to provide a psychologist’s report. This submission, as advanced at the hearing, appeared to contend that the decision was unfair because the Tribunal had allowed the first extension, and there had been earlier delays in the Tribunal proceeding for which it was responsible. That submission fails to grapple with the relevant principles for establishing an error of this nature.

38    The appellant has not established the primary judge made findings which were irrelevant or on which there was no evidence. Further, as is apparent from J[27] and the reasons preceding it, the primary judge’s acceptance that the Tribunal’s reasons provided an evident and intelligible basis for refusing the further adjournment application, itself had a coherent and intelligible justification and was not based on speculation. Her Honour concluded it had not been established that the Tribunal’s exercise of its discretion was legally unreasonable. The appellant has not established the primary judge erred in doing so.

39    The appellant has not established grounds 1 and 3.

Ground 2: the primary judge gave such undue weight to the representation of the appellant at an inquisitorial hearing as to amount to an error

40    For the reasons above, this ground is not established.

Ground 4: the primary judge failed to engage with the appellant's contention there was a definite date by which the medical report would be provided and there was only a minimal delay in circumstances where the Tribunal had itself been responsible for considerable delay since the decision of the delegate

41    For the reasons above, this ground is not established.

Ground 5: the primary judge erred in determining that the appellant failed to attain the natural justice by the Tribunal

42    The appellant does not press ground 5 except to the extent that an unreasonable exercise of discretion in relation to an adjournment or extension application is a denial of procedural fairness. No additional submissions were advanced. For the reasons above, this ground is not established.

Conclusion

43    The appeal is dismissed, with costs.

Associate:

Dated:    4 September 2026