Federal Court of Australia

Kamoh v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 604

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the second respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed.

4.    The appellant pay the costs of the first respondent, fixed in the amount of $5,000.

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 transcript)

HORAN J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) dated 28 September 2023, dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal not to grant to the appellant a Student (Subclass 572) visa: Kamoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 861 (J).

2    For the following reasons, I consider that there is no error in the decision below, and the appeal should therefore be dismissed.

BACKGROUND

3    The appellant is a citizen of India who first arrived in Australia on 13 November 2008 as the holder of a student visa for the purposes of studying a Diploma and Bachelor of Information Technology. He subsequently applied for and was granted further student visas and bridging visas.

4    On 27 June 2016, the appellant applied for a student visa (Subclass 572) in order to undertake an Advanced Diploma of Business with a commencement date of 11 July 2016 and a completion date of 9 July 2017.

5    On 4 November 2016, a delegate of the Minister refused to grant a student visa to the appellant. The delegate was not satisfied that the appellant intended genuinely to stay in Australia temporarily, and he therefore did not satisfy the requirements of cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth).

6    The appellant sought review by the Tribunal, and attended a hearing before the Tribunal on 20 June 2018. On 4 July 2018, the Tribunal affirmed the delegate’s decision.

(a)    The Tribunal found that there was no evidence that the appellant was enrolled, or had a current offer of enrolment, in any course of study, noting that this had been confirmed by the appellant at the hearing.

(b)    The Tribunal found that the appellant was using the student visa program to circumvent the intentions of the migration program, having regard to his personal circumstances, his immigration history, the lack of value of the courses that he had previously undertaken relative to his stated future goals, and the comparatively greater economic and employment opportunities in Australia. The Tribunal noted that the appellant had previously breached visa conditions by overstaying without a visa, which suggested that he was at risk of repeating that behaviour.

(c)    The Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay in Australia and that he intended to stay in Australia temporarily. The Tribunal had regard to the appellant’s non-enrolment in a course of study at the time of the hearing, his transition from the Higher Education stream to the Vocational Education and Training (VET) sector, his non-participation in the Higher Education sector during the previous nine years, the extended period of his stay in Australia, and the period of non-study when an opportunity was available to complete studies.

THE DECISION BELOW

7    In his application to the FCFCoA for judicial review of the Tribunal’s decision, the appellant alleged that the Tribunal “made jurisdictional errors in interpreting ‘GENUINE TEMPORARY criteria’ and in making a decision on my application”.

8    The primary judge held that the appellant had not established that the Tribunal’s decision was affected by any jurisdictional error. In circumstances where the appellant was not enrolled in any applicable course of study and did not have any current offer of enrolment, he did not meet the criteria for the grant of a Subclass 572 student visa: J [14]–[16], referring to Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 at [30]–[31]. Further, while it was strictly unnecessary for the Tribunal to consider whether the appellant met the “genuine temporary entrant” criterion, there was no error in the Tribunal’s conclusion that it was not satisfied that the appellant was a genuine temporary entrant for the purposes of cl 572.223(1): J [17]–[18].

THE APPEAL

9    The notice of appeal contains the following ground of appeal:

I believe that I have been denied procedural fairness in my review application at Federal Circuit. I believe that FCC did not consider the Migration Regulations properly and made a jurisdictional error while deciding on my application.

10    No particulars are given of the allegation that the appellant was denied procedural fairness in the proceedings before the primary judge, and there is no evidence before the Court to support any such allegation. Similarly, there are no particulars of the allegation that the primary judge (or the Tribunal) failed properly to apply the Regulations.

11    The appellant has not filed a written outline of submissions. He appeared in person at the hearing this afternoon and made the following submissions in support of his appeal.

12    The appellant submitted that he told the primary judge that he had not attended his classes due to family problems and depression. He said that he wanted to stay in Australia for the purposes of raising his daughter, who had obtained Australian citizenship and was now in Year 11 at a secondary school. The appellant did not contest the finding that he was not enrolled in a course of study at the time of the Tribunal hearing. He submitted that this was because he had been unable to pay course fees at that time due to a lack of employment. He submitted that he wanted a further chance to remain in Australia for the purposes of supporting his daughter.

13    There is nothing raised in the appellant’s submissions to indicate any error in the decision of the primary judge. The Tribunal correctly found that the appellant did not meet the mandatory requirements for the grant of a Subclass 572 student visa in circumstances where he was not enrolled in an applicable course of study. No error has been established in the Tribunal’s finding that it was not satisfied that the appellant was a genuine applicant for entry and stay as a student, nor that he intended genuinely to stay in Australia temporarily.

14    The appellant’s submissions at the hearing were not directed to establishing any error in the decision of the primary judge, nor did they point to any arguable error in the decision made by the Tribunal.

CONSIDERATION

15    In such circumstances, the appeal must be dismissed. The appellant should pay the Minister’s costs, fixed in the sum of $5,000.

Associate:

Dated:    15 May 2026