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

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

The appeal failed because, even if the Tribunal overlooked or failed to respond to the appellant's 26 April 2017 email, that failure did not amount to jurisdictional error. The appellant had been clearly told that he needed to provide evidence that he was enrolled in, or had an offer of enrolment in, a relevant course, had been given a two-week adjournment for that specific purpose, and did not provide the required evidence. The email requested a form of written permission that the Tribunal was not obliged to provide, did not directly respond to the request for enrolment evidence, and did not clearly request a further adjournment. In those circumstances, the Tribunal did not deny...

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Appeal From Federal Circuit Court Judicial Review Proceedings Concerning Refusal of a Student (temporary) (class Tu) Higher Education Sector (subclass 573) Visa / Appeal to the Federal Court of Australia From Mohammed V Minister for Immigration & Anor [2018] FCCA 1943
Outcome
Appeal dismissed with costs.
Legal Topics
['student Visa Refusal' 'cl 573.231 of Schedule 2 to the Migration Regulations 1994 (cth)' 'administrative Appeals Tribunal Review' 'procedural Fairness' 'legal Unreasonableness' 'adjournment' 'unrepresented Applicant']
['migration' 'administrative Law' 'judicial Review'] ['student Visa Refusal' 'cl 573.231 of Schedule 2 to the Migration Regulations 1994 (cth)' 'administrative Appeals Tribunal Review' 'procedural Fairness' 'legal Unreasonableness' 'adjournment' 'unrepresented Applicant']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court Judicial Review Proceedings Concerning Refusal of a Student (temporary) (class Tu) Higher Education Sector (subclass 573) Visa / Appeal to the Federal Court of Australia From Mohammed V Minister for Immigration & Anor [2018] FCCA 1943

Legal Issues

  1. 1 ["Whether the primary judge erred in not finding that the Tribunal overlooked the appellant's email of 26 April 2017." 'Whether the Tribunal breached any duty owed to the appellant as an unrepresented party by failing to respond to the email.' "Whether the Tribunal's failure to engage with or respond to the email breached s 359 or s 360 of the Migration Act 1958 (Cth) and therefore the natural justice hearing rule as it applied to the review." "Whether the Tribunal's failure to engage with or respond to the email constituted an unreasonable exercise, or failure to exercise, power or discretion under s 360 or s 363(1)(b) of the Migration Act 1958 (Cth)."]

Ratio Decidendi

The appeal failed because, even if the Tribunal overlooked or failed to respond to the appellant's 26 April 2017 email, that failure did not amount to jurisdictional error. The appellant had been clearly told that he needed to provide evidence that he was enrolled in, or had an offer of enrolment in, a relevant course, had been given a two-week adjournment for that specific purpose, and did not provide the required evidence. The email requested a form of written permission that the Tribunal was not obliged to provide, did not directly respond to the request for enrolment evidence, and did not clearly request a further adjournment. In those circumstances, the Tribunal did not deny...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]