Federal Court of Australia

Elbarbari v Minister for Immigration and Citizenship [2026] FCA 936

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    This is an appeal from the judgment of the primary judge in the Federal Circuit and Family Court of Australia in Elbarbari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 562.

2    The appellant is a citizen of Egypt who first arrived in Australia on 8 February 2008 as the holder of a Student (Subclass 572) visa. He was subsequently granted a number of student visas or associated bridging visas and most recently applied for a Student (Subclass 572) visa (Student visa) on 19 March 2016, based on enrolment in an Advanced Diploma of Marketing, a Diploma of Human Resources and an Advanced Diploma of Management (Human Resources).

3    On 9 June 2016, a delegate of the first respondent (the Minister) refused to grant the appellant a Student visa on the basis that the delegate was not satisfied that the appellant was a genuine applicant for entry and stay as a student as required by cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations).

4    The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision on 27 June 2016. On 25 May 2017, the appellant attended a scheduled hearing before the Tribunal. In a decision dated 26 May 2017, the Tribunal affirmed the decision under review on the same basis, namely that the appellant did not meet cl 572.223.

5    The appellant applied for judicial review to the Federal Circuit and Family Court of Australia, and on 17 October 2017 orders were made by consent remitting the matter on the basis that the Tribunal had failed to have proper regard to para 9(b) of Ministerial Direction 53 (Direction No 53), in circumstances where the appellant provided evidence which related to that paragraph, including evidence of potential career opportunities, assets and his sister’s medical condition.

6    On 4 July 2018, the appellant was invited to attend a hearing before the Tribunal scheduled for 30 July 2018. On 25 July 2018, the appellant requested that the hearing be postponed, and on 21 September 2018, the appellant was invited to a rescheduled hearing before the Tribunal on 17 October 2018.

7    On 11 October 2018, the appellant’s representative submitted a number of documents in support of his application, including: enrolment for a Bachelor of Business (for the course duration 4 February 2019 to 19 December 2021); marriage certificate; birth certificate; and a written submission.

8    On 17 October 2018, the appellant attended the scheduled hearing before the Tribunal. On 19 December 2018, the Tribunal affirmed the decision under review on the same basis, namely that the appellant did not meet cl 573.223.

9    On 11 January 2019, the appellant filed an application seeking judicial review of the Tribunal’s decision on the basis of three grounds of review, in which the appellant sought orders that the Tribunal’s decision be quashed and a writ of mandamus be directed to the Tribunal to determine the appellant’s application according to law.

10    The application was heard by the primary judge on 13 June 2024, and on 24 June 2024, the primary judge dismissed the application and ordered the appellant to pay the first respondent’s costs fixed in the sum of $5,400.00.

11    On 3 July 2024, the appellant filed a Notice of Appeal in this Court from the Federal Circuit and Family Court of Australia, seeking orders to set aside the orders of the primary judge, and that the Tribunal’s decision be quashed and remitted for reconsideration according to law.

The Tribunal’s decision

12    The Tribunal set out the procedural history of the matter as well as the evidence provided by the appellant at the first hearing ([2]–[8]). The Tribunal identified the issue on review, namely whether the appellant met the criteria in cl 573.223 of Schedule 2 to the Migration Regulations ([9]–[10]) and proceeded to set out the specified factors contained in Direction No. 53.

13    The Tribunal had regard to the appellant’s evidence regarding his home country; namely that he had a wife and family in Egypt, that his brothers needed him to assist with the family business, that his mother had diabetes, his sister had polio and both required care and that he claimed to have significant personal assets in Egypt ([12]). The Tribunal also noted that the appellant had made applications for Student visas and had travelled to Egypt regularly for lengthy periods during study breaks ([13]). The Tribunal found there was no further relevant information that was either beneficial or unfavourable to the appellant ([14]).

14    The Tribunal expressly noted the appellant’s “comprehensive personal submission” and set out the contents of the submission in its entirety ([15]–[17]). The Tribunal also set out the courses undertaken by the appellant since his arrival in Australia over the previous eleven years ([18]). The Tribunal noted that the appellant had provided a Confirmation of Enrolment (CoE) for a Bachelor of Business at Macleay College with a proposed completion date of December 2021 ([19]).

15    The Tribunal found that the appellant’s study history disclosed a “concentration” on vocational courses in the Business/Management sector and that he had succeeded in achieving a number of certificate and diploma qualifications. The Tribunal further found that the appellant’s study history as set out in the “Provider Registration and International Student Management System” records was “replete with cancellations of courses” which prolonged his stay in Australia ([20]).

16    The Tribunal had regard to the appellant’s evidence that he needed to do a further Bachelor degree to achieve his study objective so he could return to Egypt and either work in the family business or find alternative employment. The Tribunal found that this claim was “juxtaposed” with the information he presented at the first hearing, which was a CoE for a further vocational course, rather than a Bachelor degree, but noted the appellant’s submission that employees who have Bachelor qualifications have higher job opportunities and salaries ([21]).

17    The Tribunal found that the appellant “painted a picture” of a need to obtain a formal Bachelor’s degree when the reality was “otherwise”. The Tribunal noted the various certificate and diploma vocational courses the appellant had completed since arriving in Australia and found that it was satisfied that the qualifications gained could equip him for his chosen career path in Egypt ([22]).

18    The Tribunal noted that despite the considerable time in Australia the appellant had not attempted a Bachelor degree and that he adversely referred to his lack of English language skills. The Tribunal found that there was evidence he had undertaken courses to remedy the problem and the results were self-evident, noting that he had passed a number of vocational courses and that his English language ability was sufficient to meet enrolment requirements ([23]).

19    The Tribunal found that the appellant had not studied in the interim period of 17 months since his initial judicial review proceedings. The Tribunal further considered the appellant’s concessions that: he had not studied since June 2016; he was waiting for the outcome of his case; he did not care to finish the course; he was unsure when he would return to Egypt; he was working; and that he had a hernia so went to Egypt for an operation which did not happen and he returned to Australia for the second hearing ([24]).

20    The Tribunal recorded that it was “perplexed” by the appellant’s “frank admission that he did not study between November 2017 and October 2018 (and effectively since 2016)”. Having regard to his study history, the Tribunal gave the evidence of the appellant’s failure to study “maximum negative weight” when considering his genuineness as a student. The Tribunal was doubtful of the appellant’s stated intention to return to Egypt, in light of the length of time he had spent in Australia and his study history. The Tribunal found that the study history indicated that his principal reason for remaining in Australia was to make money and that his constant assertion that he wished to equip himself with management skills to work in the business had to be weighed against his student visa history. The Tribunal found that the appellant’s visa history was unsatisfactory when weighed against the time he spent in Australia and many course cancellations ([25]).

21    The Tribunal found that, in light of the longevity of the appellant’s stay in Australia, he had “ample time to equip himself for his chosen career”. The Tribunal did not accept the appellant’s contention that he needed to do a further degree before leaving and was satisfied the appellant had already had “more than enough time” to do a Bachelor degree. The Tribunal found that the fact the appellant had not studied since 2016 was not indicative of a genuine applicant for a Student visa, but rather someone who wished to prolong their stay in Australia unnecessarily ([26]).

22    The Tribunal considered the appellant’s history in Australia, noting he was 22 when he entered Australia and was now 32, finding the appellant had spent the “greater part of his adult life” in Australia and was seeking to prolong it. The Tribunal noted the appellant’s evidence that he had a wife and family in Egypt, that his mother and sister suffered ill health and his brothers were overborn with the family business. However, the Tribunal found the appellant’s insistence on remaining in Australia evidenced that he had little intention to return home ([27]).

23    The Tribunal noted that the appellant’s evidence at the first hearing was that he intended to undertake another vocational course to verify his genuineness as a student, but that he then informed the Tribunal at the second Tribunal hearing that he cancelled his enrolment “of his own volition”. The Tribunal considered that the appellant’s enrolment record indicated that he had done this “many times before” and gave this fact considerable weight against his claim to be a genuine student. The Tribunal was satisfied the appellant could pursue a Bachelor’s course in Egypt which would also assist to resolve the difficult family situation ([28]).

24    The Tribunal was satisfied when the evidence was “weighed up”, the appellant had a job which provided a significant incentive for him to stay in Australia for a further two years. Although it accepted that he had attempted to present evidence of his personal wealth as evidence of his desire to return to Egypt, the Tribunal found this claim was contradicted by the fact that he continued working when given an opportunity to study ([29]).

25    The Tribunal found that the appellant had spent a significant period in Australia using “cheaper” vocational courses as a way of prolonging his stay. It found that there was no evidence that he had a genuine intention to return to Egypt other than him saying so. The Tribunal noted that when he was given an opportunity to remain and study by a successful appeal to the Federal Circuit and Family Court of Australia, he chose not to study and rather preferred to work for a considerable period of time. The Tribunal gave this finding “maximum weight” against his claim to be a genuine applicant ([30]).

26    The Tribunal was not satisfied that the appellant genuinely intended to stay in Australia temporarily and therefore found that the appellant did not meet cl 572.223(1)(a) ([31]). The Tribunal also found that the appellant did not meet the essential requirement of cl 573.223 and, with the exception of Subclass 580, all other subclasses within the visa Class TU contained this identical requirement. Accordingly, the Tribunal affirmed the decision under review ([32]–[33]).

Issues on the appeal

27    The criteria that the appellant was required to satisfy for the grant of a Student visa were set out in cl 573.223 of Schedule 2 to the Migration Regulations:

(1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

i. the applicant’s circumstances; and

ii. the applicant’s immigration history; and

iii. if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

iv. any other relevant matter; and

(b)     the applicant meets the requirements of subclause (1A) or (2).

28    Direction No. 53 given by the Minister under s 499(1) of the Migration Act 1958 (Cth) concerned the assessment of the genuine temporary entrant criterion at cl 573.223(a).

29    The issue in relation to the Tribunal’s decision was whether the Tribunal was satisfied in relation to the genuine temporary entrant criterion in cl 573.223(a). This question required the Tribunal to consider not only the applicant’s stated intention, but “the applicant’s circumstances”, “the applicant’s migration history”, and “any other relevant matter”.

30    Ground 1 alleges the primary judge erred by failing to find that the Tribunal’s decision was infected by jurisdictional error given its findings as to the appellant’s intention to stay for reasons other than stay as a student. Grounds 2 and 3 further seek to invite the Court to review the factual merits of his claims.

31    The primary judge found:

(a)    the appellant submitted orally that he believed he met the criteria for a Student visa ([24], [47]);

(b)    the Court’s jurisdiction was to review the lawfulness or legality of the Tribunal decision, and that the Court could only grant relief to the appellant if the appellant established that the Tribunal’s decision was affected by jurisdictional error ([27]–[29]), citing Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2]–[3]; and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40]; and

(c)    by raising these matters, the appellant was inviting the Court to review the factual merits of the Tribunal decision ([47]).

32    The primary judge correctly identified the law regarding judicial review, and found that these allegations amounted to nothing more than impermissible merits review of the Tribunal’s decision. Accordingly, as the Minister submits, grounds 1 to 3 do not demonstrate jurisdictional error.

33    Ground 4 relies upon the grounds the appellant pursued in the judicial review application before the primary judge, which I deal with below.

34    Grounds 1 and 2 in the application before the primary judge state that the Tribunal erred by constituting the matter to the “same Member who previously refused me”.

35    The primary judge correctly held that there was nothing in the previous remittal by the Court to require the Tribunal to be differently constituted upon remittal, and no evidence to support the appellant’s contention that such a request was made to the Tribunal ([30]–[32]). The primary judge accepted the Minister’s submission that by failing to object to the constitution of the Tribunal at the time, the appellant had waived his right to do so now ([33]), citing MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100 at [43].

36    As the primary judge stated (at [32]), the composition of the Tribunal, and whether a remitted matter is appropriate for a differently constituted Tribunal, is a matter for the President of the Tribunal, citing AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244 at [68].

37    To the extent that the appellant contends that remittal of the matter to the same Tribunal member who previously heard it gives rise to a reasonable apprehension of bias, this contention fails on the basis of the material before the Court.

38    The test for establishing a reasonable apprehension of bias is whether a fair-minded and informed observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. In this case, the Tribunal gave detailed consideration to the appellant’s new claims and evidence, and invited him to address his recent circumstances including whether he had studied since his matter was last before the Tribunal ([24]). The Tribunal’s findings were made on the basis of the appellant’s own evidence including in relation to his study history. For example, the appellant gave evidence that he had not studied since June 2016, was not sure when he would go back to Egypt, and was “waiting and working” ([24]). The Tribunal found that this was not indicative of a genuine applicant for entry and stay as a student, but someone who wished to prolong their stay in Australia ([30]).

39    Ultimately, the fair-minded observer would be taken to understand that, after the first Tribunal decision was set aside, the Tribunal’s task on remittal was to determine the appellant’s application for review by deciding the matter afresh and considering the further evidence and arguments the appellant provided to the Tribunal, which the Tribunal in this case did. The Tribunal also referred to material submitted both prior to the remittal and afterwards (see for example [17], [28]), which demonstrates that it was cognisant of the need to consider the matter afresh. Accordingly, grounds 1 and 2 must fail.

40    Ground 3 in the application before the primary judge contends that the Tribunal erred in failing to consider the appellant’s “lengthy submissions” and his “genuine intention to obtain a formal Bachelor degree”. This contention fails on the facts. The Tribunal set out in full the appellant’s written submission ([17]). It also expressly considered it against the specified factors in Direction No 53, for example, the appellant’s claims regarding his family and personal assets in Egypt against his circumstances in his home country at [12], and his stated intention to obtain a Bachelor’s degree at [21].

41    The primary judge correctly rejected the appellant’s contention that the Tribunal failed to consider his written submission and found that simply because the Tribunal did not accept the appellant’s claim at face value did not constitute a failure to consider the submission at all ([37]–[40]). The Tribunal’s express reference to the appellant’s submission is “powerful evidence” against the drawing of any inference that it was not considered: CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; (2020) 277 FCR 201 at [79]. Further, the appellant has failed to identify any element of his claims or evidence which the Tribunal failed to consider, and none is apparent.

42    Ground 3 also alleges that the Tribunal was affected by bias. In relation to apprehended bias, the primary judge set out the relevant legal principles ([41]–[42]) but held that her Honour was “unable to discern” anything which might cause a fair-minded and well-informed lay person to reasonably apprehend the Tribunal may not have brought an impartial mind to the conduct of the review ([43]–[44]). To the extent that this allegation constitutes a separate ground of review, it fails for the reasons set out above in relation to grounds 1 and 2. Accordingly, ground 3 to the initial judicial review application must fail.

Conclusion

43    Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    16 July 2026