Federal Court of Australia

Afzal v Minister for Immigration and Citizenship [2026] FCA 998

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as taxed or agreed.

3.    The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

4.    The name of the second respondent be changed to the ‘Administrative Review Tribunal’.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal concerning the cancellation of a student visa. The visa was cancelled by a delegate of the first respondent (the ‘Minister’). The delegate exercised the power in s 116(1)(b) of the Migration Act 1958 (Cth) (the ‘Act’) to cancel a visa for non-compliance with a visa condition. The relevant condition was condition 8202(2)(a) in sch 8 to the Migration Regulations 1994 (Cth) which requires that a holder of the relevant visa type must be enrolled in a full-time registered course.

2    The appellant then applied for a merits review of the delegate’s decision by the Administrative Appeals Tribunal, as it was then called (the ‘Tribunal’). The Tribunal affirmed the delegate’s decision. The appellant next applied for orders from the Federal Circuit and Family Court of Australia (Division 2) which, if made, would have quashed the Tribunal’s decision. However, the Court dismissed his application with costs which it assessed at $8,371.30. He now appeals to this Court.

Denial of procedural fairness by the tribunal

3    The notice of appeal in this Court advances three grounds of appeal but only one of those, Ground 2, discloses a substantive ground of appeal. That ground is that the Court below erred in not accepting that the appellant had been denied procedural fairness by the Tribunal.

4    Relevant to the procedural fairness issue is medical evidence which the appellant put before the Tribunal at the hearing it held on 15 January 2020. At that time, the appellant was represented by Mr Rafi, a registered migration agent. In a letter sent to the Tribunal in advance of the hearing, Mr Rafi submitted that a psychologist’s report he attached to his submission indicated that the psychologist had asked that the appellant be given special consideration for his continued study in Australia. Mr Rafi also submitted that the cancellation of the appellant’s student visa would have serious consequences for the appellant’s health.

5    The attached report of the psychologist is dated 10 January 2020 (it is in fact misdated 10 November 2020, but this is clearly a typographical error when regard is had to its contents). The report said that the appellant met the criteria for Post-Traumatic Stress Disorder under the 5th edition of Diagnostic and Statistical Manual of Mental Disorders.

6    The relevance of the report was to persuade the Tribunal not to exercise its discretion to cancel the appellant’s visa under s 116 of the Act by providing information which could explain the appellant’s non-compliance with his visa conditions. Mr Rafi did not submit to the Tribunal that the proceeding before it should be adjourned because the appellant was not in a psychologically fit condition to give evidence or to give instructions or otherwise to participate in the hearing.

7    The Tribunal was unpersuaded by the psychologist’s report that the appellant’s student visa should not be cancelled.

8    In the ensuing proceeding in the Court below, the appellant raised a number of complaints about the Tribunal’s decision. Two of those complaints were that the Tribunal was ‘provided a psychologist report that was completely ignored by the AAT member’ and that ‘the applicant has provided many evidences regarding degree of financial, psychological, emotional hardships which may be caused by the cancellation of the visa but those evidences have not been considered appropriately’. The complaints did not include a contention that the Tribunal had departed from the rules of procedural fairness because of the state of the appellant’s mental health at the time of the Tribunal hearing. Rather, the references to the psychological evidence in the two complaints set out above were allegations that the Tribunal had failed to give it appropriate weight in the exercise of its discretion.

9    In shortly stated but, in my respectful opinion, thorough reasons, the learned primary judge explained why each of the grounds advanced by the appellant had to be rejected. The appellant does not challenge any of those conclusions in this Court. Ground 2, instead, appears to be concerned with an observation made in passing by his Honour at [18]-[19]:

[18] One last matter: the applicant said in his oral submissions that his mental health at the time of the hearing before the Tribunal may have impaired his ability to give evidence at that hearing, although he confirms his mental health has improved so that there is no issue today. I acknowledge there was evidence before the Tribunal suggesting he was experiencing symptoms of anxiety and depression, although there was no suggestion then or now that he was incompetent. Particularly where an applicant is unrepresented, evidence of depression or anxiety that might impair an applicant would be a red flag to the presiding member that might prompt questions about whether the applicant was fit to give evidence.

[19] There is no evidence before me which suggests questions about impairment were raised at the time. I note the applicant was represented. While issues of impairment leading to a lack of procedural fairness were not raised as a ground of review, there is insufficient material before me and no reason to suggest that I should invite an amended application to deal with that issue.

10    Two aspects of this should be noted. The first is the reference in [19] to the insufficiency of the material before the Court to suggest a case based on a want of procedural fairness. This directly relates to Ground 2. The second is the reference in [18] to the appellant having confirmed at the time of the hearing in the Court below that his mental health had improved so ‘there is no issue today’. Although this does not relate to Ground 2, it is relevant to an argument that the appellant advanced at the hearing before me and it will be necessary to return to it below.

11    Read beneficially, Ground 2 seeks to contend that that the appellant was not in a fit state to participate in the Tribunal’s hearing. The psychologist’s report does not assist in demonstrating this. What the report showed was that the appellant was suffering from post-traumatic stress disorder. It is an inescapable inference from Mr Rafi’s letter to the Tribunal that at the time he put the appellant’s case to the Tribunal he must have understood its contents.

12    It is possible that Mr Rafi could have pursued an application to adjourn the hearing before the Tribunal on the basis of the psychologist’s report. However, the report does not purport to address the question of whether the appellant was fit to give evidence or instructions. It is directed to a different issue, namely, whether special consideration ought to be given by the Tribunal to a favourable exercise of the cancellation discretion.

13    For that reason, it is likely that there would have been significant obstacles to obtaining an adjournment on the basis of the report. However, making the assumption in the appellant’s favour that the report could have provided a proper basis for adjourning the proceeding, a further difficulty arises. This is the fact that Mr Rafi did not seek to adjourn the proceeding on the basis of the psychologist’s report.

14    Generally speaking, in civil litigation where parties are represented, they are bound by the conduct of their representatives. Where Mr Rafi did not seek to adjourn the proceeding on the basis of the contents of the psychologist’s report, it was not open to the appellant before the primary judge to contend that he was denied procedural fairness because he was not in a fit state to participate in the Tribunal hearing.

15    Fairly read, the learned judge below did not reject any submission made by the appellant that he had been denied procedural fairness. Rather, what it shows is even though the appellant did not raise such an argument, his Honour was recording the fact that he had considered the issue anyway. Having considered it, his Honour did not think that the material was sufficient to justify an invitation to the appellant to raise an issue which was not comprised amongst the grounds articulated in his originating application.

16    For the reason I have given, I do not think that his Honour can be criticised for this conclusion which in my view is correct. Because the appellant did not raise this argument before the Court below, he requires leave before it can be pursued in this Court. Since the argument cannot succeed, I would refuse leave. Since leave has not been granted, Ground 2 must be dismissed.

17    The Minister also addressed submissions on an alternate reading of Ground 2. Ground 2 is in these terms:

I do believe that [his] Honour failed to accept that I was denied procedural fairness and such in my view should be considered as an error of law.

18    The alternate reading is that the judge below erred in failing to give the appellant the opportunity to raise the procedural fairness argument. I do not read Ground 2 this way. However, even if I did, I am unpersuaded that the judge erred in not giving the appellant an opportunity to put an argument which could not succeed.

Denial of procedural fairness by the Court below

19    Before this Court, the appellant made a fresh oral submission that he had been denied procedural fairness in the Court below because he was not in a fit condition to argue his case before it. I would reject this for two reasons. First, the judge recorded at [18] (above) that as the appellant’s mental health had improved, there was no issue before the Court below and the appellant was in a fit condition to argue his case. In the absence of any evidence to the contrary, there is no reason to disturb this finding. Secondly, the only evidence before me or the primary judge that could potentially go towards a finding regarding the appellant’s mental condition at the time of the primary judge’s decision is the psychologist’s report. The report was produced in January 2020 and the hearing before the Court below occurred on 14 October 2024. I do not accept that it is capable of constituting any evidence about the fitness of the appellant to participate in the hearing in the Court below.

20    For those reasons, the appeal must be dismissed with costs. The orders will be:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs as taxed or agreed.

(3)    The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

(4)    The name of the second respondent be changed to the ‘Administrative Review Tribunal’.

Associate:

Dated:    28 July 2026