Aziz v Minister for Immigration - [2021] FCCA 999

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZIZ v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 999

Catchwords:
MIGRATION – Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – failure to comply with section 359AA of the Migration Act 1958 (Cth) – failure to properly consider the applicant’s mental health – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 357A, 357AA, 359A, 359AA

Migration Regulations 1994 (Cth) sch.2 cl. 573.611, sch. 8 cl. 8202

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Kaur v Minister for Immigration & Anor [2012] FMCA 438

Minister for Home Affairs v Omar [2019] FCAFC 18

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Singh v Minister for Immigration & Anor [2016] FCCA 3232
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90

Applicant:

MALIK JAMAL AZIZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 589 of 2017

Judgment of:

Judge Mercuri

Hearing date:

5 October 2020

Date of Last Submission:

5 October 2020

Delivered at:

Melbourne

Delivered on:

14 May 2021

REPRESENTATION

Counsel for the applicant:

Mr Kornhauser

Solicitors for the applicant:

JT Lawyers

Advocate for the respondents:

Ms Stone

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicant’s application filed on 24 March 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 589 of 2017

MALIK JAMAL AZIZ

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 24 February 2017 where it affirmed a decision made by a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“the visa”) on 8 June 2016.
The applicant is a Pakistani citizen who was granted the visa on 7 June 2014. He arrived in Australia on 19 June 2014 and completed an English language course later that year.[1] At the time he applied for the visa, he was enrolled to commence a Bachelor of Business in November 2014. However, the applicant’s enrolment in the Bachelor of Business course was later cancelled on 24 November 2014 for non-commencement of studies.[2]
[1] Court book pages 80 and 131.
[2] Court book page 80.
The applicant applied for a protection visa on 5 March 2015 which was refused.
On 13 April 2016, the Delegate sent the applicant a Notice of Intention to Consider Cancellation of the visa (“NOICC”) which notified the applicant that the first respondent was considering cancelling the visa due to a failure to comply with section 116(1)(b) of the Migration Act 1958 (Cth) (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Aziz v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FCCA 999
Decision Date: 14 May 2021

CaseChat Overview and Summary

The applicant, Mr Aziz, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. The core of the dispute concerned whether the delegate of the Minister had properly considered Mr Aziz's mental health in assessing his application, particularly in relation to section 359AA of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit Court of Australia before Judge Mercuri.

The primary legal issue before the Court was whether the delegate's assessment of Mr Aziz's mental health was procedurally unfair or otherwise unlawful. Specifically, the Court was required to determine if the delegate had failed to take into account relevant considerations, namely the applicant's mental health condition, when making the decision to refuse the visa.

Judge Mercuri found that the delegate had failed to properly consider the information provided by Mr Aziz regarding his mental health. The Court reasoned that section 359AA of the *Migration Act* requires a delegate to consider all relevant information, and that the applicant's mental health was a relevant consideration in this instance. The delegate's approach, which appeared to dismiss or inadequately address the mental health concerns raised, was found to be a failure to undertake the required assessment. Consequently, the application for judicial review was dismissed.

Orders