Background
Danish Afzal’s student visa was cancelled under s 116(1)(b) of the Migration Act 1958 (Cth) because he was not enrolled in a full-time registered course, as required by visa condition 8202(2)(a). The Administrative Appeals Tribunal affirmed the cancellation.
Before the Tribunal, Afzal was represented by a registered migration agent and relied on a psychologist’s report stating that he met the diagnostic criteria for post-traumatic stress disorder. The report was submitted to explain his non-compliance and support a favourable exercise of the cancellation discretion; neither Afzal nor his representative sought an adjournment or claimed that he was unfit to give evidence, provide instructions or participate in the hearing.
The Federal Circuit and Family Court of Australia (Division 2) dismissed Afzal’s judicial-review application. He appealed to the Federal Court, principally arguing that the primary judge should have found that his mental health conditions resulted in a denial of procedural fairness before the Tribunal. He also argued orally that his condition had prevented him from presenting his case properly in the court below.
The Court’s Holding
Justice Perram dismissed the appeal. The psychologist’s report did not address Afzal’s fitness to participate in the Tribunal hearing and had instead been directed to the Tribunal’s cancellation discretion. Moreover, because Afzal was represented and his migration agent did not seek an adjournment, Afzal could not later contend that the Tribunal denied him procedural fairness by proceeding with the hearing.
The procedural-fairness argument had not been raised as a ground before the primary judge, so Afzal required leave to advance it on appeal. Because the argument could not succeed, the Court refused leave and dismissed the relevant appeal ground. The primary judge also had not erred by declining to invite Afzal to advance an unmeritorious argument that was absent from his application.
The Court separately rejected Afzal’s claim that he was unfit to participate in the 2024 hearing below. The primary judge had recorded that Afzal said his mental health had improved and presented no issue at that hearing, while the January 2020 psychologist’s report was incapable of establishing his fitness nearly five years later. The appeal was dismissed with costs.
Key Takeaways
- Medical evidence offered to explain visa non-compliance does not, without more, establish that a person is unfit to participate in a tribunal hearing.
- A represented party is generally bound by the conduct of the representative, including a decision not to seek an adjournment.
- A new procedural-fairness argument requires leave on appeal, and leave may be refused where the proposed argument cannot succeed.
Why It Matters
The decision distinguishes evidence relevant to the merits of a visa-cancellation discretion from evidence establishing incapacity to participate in proceedings. A diagnosis alone will not necessarily alert a tribunal that a represented applicant cannot give evidence or instructions, particularly when no adjournment or accommodation is requested.
For migration practitioners, the case underscores the need to identify expressly any asserted impairment, connect medical evidence to the client’s ability to participate, and seek appropriate procedural relief at the time of the hearing.