Aziz v Minister for Immigration

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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

  1. The applicant’s application filed on 24 March 2017 be dismissed.

  2. 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

  1. 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.

  2. 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.

  3. The applicant applied for a protection visa on 5 March 2015 which was refused.

  4. 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…

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Details
Case
[2021] FCCA 999
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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