The appeal
19 Mr Mohamed's notice of appeal contained the following four grounds of appeal (as drafted):
1. His Honour failed to interpret and act upon compelling reasons and even though the Tribunal had a psychological report that my partner had high levels of depression, anxiety and stress, the Tribunal as well as His Honour failed to accept that such condition amounts to compelling circumstances.
2. Even both the Tribunal and His Honour failed to see that a genuine relationship based on long term also should be considered as compelling.
3. As previously stated the Tribunal mistakenly concluded the hearing without taking the oral evidence from my sponsor. Even though I appreciate that the Tribunal replied to my agent I do believe that my agent who is no longer able to practice as migration agent failed to request another hearing where my sponsor would be given the opportunity to discuss and provide evidence about her medical condition as well as her strong commitment.
4. I continue to rely on the grounds which were before His Honour Judge Dowdy and hope that the Federal Court of Australia will make a different decision specifically a decision in my favour as a result of the compelling circumstances which were overlooked by both His Honour and the Tribunal.
20 Mr Mohamed did not file any written submissions. While he did make some oral submissions at the hearing, those submissions did not squarely address his appeal grounds. They essentially amounted to a re-agitation of the grounds he had advanced in the Circuit Court and a general complaint that the primary judge had not accepted those grounds. As for the fact that the Tribunal did not call evidence from his wife at the hearing, Mr Mohamed conceded that the Tribunal had given him two options to remedy its oversight and that he chose the option of providing a statutory declaration from his wife and a medical report. His main complaint or grievance was that, once he had provided those documents, the Tribunal did not ask him for any more information. As for the judgment of the primary judge, Mr Mohamed's submission was simply that the primary judge had refused his application without considering his rights.
21 There is no merit in any of the appeal grounds and no merit in any of Mr Mohamed's submissions.
22 The first ground of appeal fails to identify any, or any coherent or comprehendible, appellable error on the part of the primary judge. It amounts to no more than a general challenge to the merits of the Tribunal's finding that the evidence before it did not provide a compelling reason not to apply the relevant visa criterion. To the extent that this ground of appeal addresses the judgment of the primary judge at all, it appears to proceed on the erroneous basis that it was somehow part of his Honour's jurisdiction to consider whether there were compelling circumstances. The primary judge's jurisdiction was limited to considering whether the Tribunal made any jurisdictional errors in considering and deciding Mr Mohamed's review application. It was not within his Honour's jurisdiction to simply reconsider the merits of Mr Mohamed's review application.
23 The second ground raises an argument which was not advanced in the Circuit Court. That argument appears to be that the length of Mr Mohamed's relationship with his wife provided a compelling reason to not apply the relevant criterion. Because that argument was not put in the court below, Mr Mohamed required the Court's leave to raise it on appeal. Even putting that procedural issue or problem to one side, the more fundamental problem for Mr Mohamed is that it does not appear that he squarely even put any argument concerning the length of his relationship with his wife to the Tribunal upon remittal. That is perhaps unsurprising given that the evidence, such as it was, on that topic went no further than revealing that Mr Mohamed and his wife had been married for two years. In any event, the fact that the Tribunal did not expressly advert to that consideration in its reasons could not have amounted to a jurisdictional error in all the circumstances. It should also be noted that Mr Mohamed did not make any oral submissions in support of this ground at the hearing.
24 The third ground relates to the fact that the Tribunal did not take oral evidence by telephone from Mr Mohamed's wife at the hearing. Mr Mohamed asserted, in that context, that his migration agent "failed to request another hearing". To the extent that, by so asserting, Mr Mohamed is somehow attempting to blame his agent for not requesting a hearing, no such argument was put to the Circuit Court. Nor, more fundamentally, did Mr Mohamed adduce any evidence in the Circuit Court in support of any such contention. In any event, Mr Mohamed did not, in his submissions in support of his appeal, suggest that his migration agent was somehow to blame for the decision not to accept the Tribunal's offer to reconvene the hearing. Indeed, he freely accepted that he chose the option of submitting a statutory declaration.
25 The primary judge was plainly right to reject Mr Mohamed's ground of review based on the fact that the Tribunal did not take oral evidence from his wife. The Tribunal complied with all the relevant obligations imposed on it by the Migration Act 1958 (Cth) in relation to the exercise of its jurisdiction. It invited Mr Mohamed to appear at the hearing in compliance with s 360 of the Act. Mr Mohamed did not notify the Tribunal that it wanted the Tribunal to obtain oral evidence from any witnesses, including his wife, in accordance with s 361 of the Act. It could not, therefore, be said that in failing to call evidence from Mr Mohamed's wife, the Tribunal somehow breached s 361 of the Act.
26 While it appears that, at the Tribunal hearing, Mr Mohamed indicated that his wife was available to give oral evidence, the Tribunal was not obliged, under any provision of the Act, to call oral evidence from Mr Mohamed's wife in response to that indication. Even so, it appears that the Tribunal had intended to take evidence from Mr Mohamed's wife, but had mistakenly neglected to do so. Once it realised that mistake, the Tribunal offered to reconvene the hearing for the purpose of taking that evidence. Mr Mohamed chose not to accept that offer, electing instead, through his migration agent, to submit written evidence from his wife by way of statutory declaration. In those circumstances, even if, contrary to s 357A of the Act, the Tribunal was somehow bound to afford Mr Mohamed procedural fairness in a way that extended beyond the provisions in the Act concerning the conduct of reviews in the Tribunal, there was plainly no denial of procedural fairness. The primary judge was right to so conclude.
27 The fourth ground of appeal simply repeats the grounds advanced before the Circuit Court. It does not identify any error on the part of the primary judge in rejecting those grounds.
28 As has already been noted, Mr Mohamed's oral submissions essentially sought to re-agitate his grounds of review in the Circuit Court. For the reasons already given, Mr Mohamed's complaint based on the fact that the Tribunal did not call evidence provides no basis for the finding of jurisdictional error on the part of the Tribunal and the primary judge was correct in rejecting the ground of review based on that complaint.
29 Mr Mohamed's complaint that the Tribunal was somehow obliged to, but did not, ask him for more information also has no merit for the reasons given by the primary judge. It is well established that, as the proceedings in the Tribunal are inquisitorial, it is for the applicant to advance whatever evidence and arguments he or she wishes to advance: Abebe v Commonwealth (1999) 197 CLR 510; HCA 14 at 576 [187]. The Tribunal is not obliged, during or after the hearing, to advise an applicant that it is not satisfied by that evidence and is not obliged to give an applicant the opportunity to supplement the evidence if it is not satisfied by the evidence initially adduced.