Federal Court of Australia

Hammouda v Minister for Immigration and Multicultural Affairs [2025] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The Minister’s name be amended to “Minister for Immigration and Multicultural Affairs”.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    This matter has a long history. As long ago as 21 March 2018, the applicant lodged an application for a student visa to study a Certificate IV in Marketing and Communication, followed by a Diploma and Advanced Diploma in Marketing and Communication at the Australian International Language College.

2    On 29 May 2018, a delegate of the Minister refused to grant the student visa, on the basis that the applicant did not satisfy the requirements of cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) – namely, that the applicant genuinely intended to stay in Australia temporarily.

3    Immediately thereafter, the applicant sought a review of the delegate’s decision. For reasons that are unclear, a period of then well over 18 months elapsed, and on 12 November 2019, the Tribunal wrote to the applicant pursuant to s 359 of the Migration Act 1958 (Cth) (Act), inviting him to provide further information about the course(s) of study he was undertaking and his entry and stay in Australia as a student.

4    Importantly for present purposes, eight days later, the applicant responded to the Tribunal by lodging a “Request for Student Visa Information under s 359(2) of the Migration Act 1958”. In response to a question asking whether “the Main Applicant [has] a current Confirmation of Enrolment (CoE) in a registered course of study?”, the applicant responded “[n]o”. The applicant also listed various courses he had enrolled in since being in Australia, the most recent of which was a Certificate IV in Marketing at the Australian International Language College in July 2018.

5    Subsequently, on 25 February 2020, the Tribunal wrote to the applicant inviting him to attend a hearing on 16 March 2020, and requesting the applicant provide the Tribunal with a “copy of [his] current Confirmation of Enrolment (CoE) or other document/s that show [he] is currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (Regulations)” at least seven days prior to the hearing.

6    Documents were provided, including a document which was apparently created on 28 July 2017, and noted a course end date for the last course that the applicant had identified in the form, being 11 July 2021.

7    The hearing was held by telephone on 16 March 2020, and the transcript of that hearing is in evidence on the application for leave to appeal before me. During his oral submissions today, the applicant made some complaints about the conduct of that hearing, including that he was provided with an interpreter with a Lebanese accent that failed to adequately convey comments that he wished to convey to the Tribunal.

8    The Tribunal concluded, following the hearing, that the delegate had refused to grant the student visa because the applicant did not meet cl 500.212 of sch 2 to the Regulations, as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily. However, the Tribunal also recorded that the applicant had not provided any evidence of enrolment in a full-time registered course in response to its 25 February 2020 invitation to attend the hearing, and had further conceded at the hearing that he did not have a current certificate of enrolment in a registered course of study, as his enrolment had come to an end, and no other colleges would accept him.

9    The Tribunal further found that the failure to meet this criterion was decisive and that the decision under review should be affirmed.

10    Before the Federal Circuit Court of Australia, the applicant relied on eight grounds of review, which were as follows:

1.    Contrary to the comment made by the Delegate of the Department of Home Affairs on 29 May 2018 I believe that I have genuine intention to stay in Australia temporarily as a full-time student and I have provided evidence in my application which appears in Court Book pages 17-41 that I have strong ties in Egypt including parents, siblings, wife and children and on page 44 of the Court Book in my statement for a student visa application I explained the purpose of my studies and the course I was enrolled in from 15/7/2019 until 11/7/2021 after which I would have to return to my country and start my business with my Australian qualifications.

2.     During my interview with the Tribunal Member the Member mentioned two basic requirements namely, whether I am enrolled in a course of study, and whether I have a genuine intention to stay temporarily in Australia. The Member failed to accept my genuine intention to stay temporarily in Australia. The Member failed to accept my genuine intention to stay in Australia temporarily and failed to take into account my strong ties with my family in Egypt.

3.     I told the Tribunal that I have many reasons and I do not want to continue studying my course and that no College has accepted me before I get the visa and I drew the Member's attention to my strong intention that I want to continue my studies and provided all my other Certificates (transcript, page 8).

4.     The Tribunal Member failed to understand the reasons as to why I was not studying at the time of the hearing even though I had genuine enrolment which appears in Court Book pages 151-152.

5.     The Member had no probative evidence to support the finding of the Delegate that I was not a genuine student who intends genuinely to stay in Australia temporarily.

6.     The Tribunal had evidence that I want to open up my own business in Egypt (Court Book p. 133).

7.     The Member of the Tribunal overlooked my CoE which appears in Court Book pages 151-152.

8.     The Tribunal misapplied the law and made a decision contrary to the evidence on file and I admit that during my interview I was not myself and was unable to recollect my circumstances and concentrate properly.

11    The matter came before the primary judge at a show cause hearing under r 44.12(1)(a) of the then Federal Circuit Court Rules 2001 (Cth). The primary judge concluded that he was not satisfied that the grounds of review then incorporated in an amended application raised an arguable case for relief. The primary judge was further satisfied that this was an appropriate matter in which to exercise the Court’s powers under r 44.12 and dismissed the application.

B    THE APPLICATION FOR LEAVE TO APPEAL

12    Before me, the decision of the primary judge is the subject of an application for leave to appeal, relying on three proposed grounds, which are as follows:

1.    His Honour Judge Street dismissed my application and did not consider the grounds listed in my Amended Application under the Migration Act dated 8/4/21.

2.    I have not received the full judgement but I do believe that I have an arguable case.

3.    The decision of His Honour is infected by error law.

13    No written submissions were filed in support of the above grounds, but a hearing has been conducted today where I have heard orally from the applicant with the benefit of an interpreter.

14    Having reviewed the papers in advance of the hearing, I was anxious to ensure that the applicant was aware of the reasons for the primary judge’s decision, and also the submissions being made on behalf of the Minister. Despite the fact that, from my observations today, the applicant has a grasp of the English language, I thought it was prudent to adjourn in order to allow the interpreter to assist him in understanding these documents.

15    During the course of his submissions, the applicant went into some detail in drawing what he regards as an important distinction. That is, the distinction between an applicant for a visa who takes some conscious step or deliberately does not enrol in a course of study on the one hand, and someone who wishes to study, but has not, at the time of the decision, been enrolled in a course of study through no fault of their own.

16    The applicant places himself in the latter category, relying on various representations made in relation to his course of study, medical difficulties, and other advice as to why it was that he has adopted the course that he has, in ceasing his enrolment in 2018 and not being enrolled in a course of study at the time of the Tribunal’s decision. As is evident from the reasons of the primary judge, similar contentions were made to his Honour.

17    I turn now to the three grounds of appeal identified by the applicant. It is worth dealing with each of these grounds in turn.

C    GROUND ONE

18    Ground one is unsustainable. It is an unparticularised allegation that the primary judge did not consider the eight grounds listed in the applicant’s amended application. The reasons of the primary judge reflect that each of the eight grounds were separately considered: see Hamouda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1827 (at [17]–[35]).

D    GROUND TWO

19    As I have previously noted, the primary judge dismissed the application for judicial review at a show cause hearing, which, of course, is an interlocutory judgment. It follows that the applicant was required to file leave to appeal from that decision within fourteen days under r 35.13(a) of the Federal Court Rules 2011 (Cth). It appears that, at the time when required to bring an application for leave to appeal, a revised version of the judgment had not been provided to the applicant. It is somewhat unfortunate that this occurred, and it seems to me to be sound practice, if a judgment is delivered ex tempore, for the time to file an application for leave to appeal to be extended to a period after the provision of written reasons, or, alternatively, that orders are not entered until the revision of written reasons.

20    In any event, the failure of the applicant to receive written reasons before the time for leave to appeal had expired does not amount to an independent ground of appeal. The applicant has had more than ample time to develop a draft notice of appeal following publication of reasons.

E    GROUND THREE

21    As the Minister correctly submits, this is a bare allegation of error that does not articulate or establish any error in the primary judge’s reasons, and the grounds of the draft notice of appeal simply repeat the matters I have already identified.

22    The issue that was determinative before the Tribunal, as explained above, is that the applicant did not meet the criterion that he be enrolled in a course of study.

23    This requirement was both a standalone requirement, and a requirement in addition to cl 500.212 (being the basis upon which the delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily) and does not call for the exercise of a discretion.

24    Either one of the matters identified in cl 500.211 applies, or it does not – it is a binary proposition. Relevantly, the relevant criterion that “the applicant is enrolled in a course of study” was not made out on the evidence before the Tribunal.

25    Despite the applicant’s helpful explanation as to why it is that he should not be burdened with any blame for his failure to be enrolled, as the primary judge recognised, this was not something that gave rise to jurisdictional error on behalf of the Tribunal.

F    CONCLUSION AND ORDERS

26    This is an application for leave to appeal and the principles are well settled and do not require explanation.

27    In all the circumstances, it has not been established that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration, and in those circumstances, the application must be dismissed with costs.

28    Accordingly, I propose to make the following orders:

1.    The Minister’s name be amended to “Minister for Immigration and Multicultural Affairs”.

2.    The application be dismissed with costs.

29    I will defer the entry of these orders until revised reasons have been produced. Once I have prepared revised reasons and had the relevant orders entered, they will be provided to the parties immediately.

Associate:

Dated: 19 May 2025