Federal Court of Australia

El Samad v Minister for Immigration and Multicultural Affairs [2026] FCA 1245

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    By way of a notice of appeal dated 10 April 2025, the appellant appeals from the decision of the Federal Circuit and Family Court of Australia (Division 2) in El Samad v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 337 (Primary Judgment or PJ).

2    The appellant raises a single ground of appeal. I am not satisfied that the appellant has established the error that he asserts. The appeal should be dismissed for the reasons that follow.

2.    BACKGROUND

3    The background facts are set out in the Primary Judgment at [3]-[11] and at [21]-[26]. There is nothing controversial about these facts, and I only repeat aspects of them here for convenience.

4    The appellant is a citizen of Lebanon. In May 2016, he was granted a subclass 573 Higher Education Sector student visa (2016 Visa) to undertake a Bachelor of Business at an educational institution in Australia (Bachelor Course).

5    On 19 April 2017, the appellant's enrolment in the Bachelor Course was cancelled.

6    On 1 December 2017, the Department of Immigration and Border Protection (Department) sent the appellant a Notice of Intention to Consider Cancellation of the 2016 Visa (NOICC) under s 116 of the Migration Act 1958 (Cth) (the Act) on the basis that the appellant had not complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) which applied to the 2016 Visa. Condition 8202(2) required the visa holder to be “enrolled in a registered course”. As the appellant was no longer enrolled in a registered course, he did not comply with condition 8202.

7    On 8 December 2017, the appellant provided a written response to the NOICC in which he explained that in June 2016 he purchased a business using money borrowed from family overseas, but after a few months the business started to lose money. The appellant stated that he then experienced “tremendous” pressure as he tried to keep the business afloat. He stated that he “felt incredibly depressed”, the “pressure caused me incredible depression”, and he “was consumed by shame because of my failure”. He said that it was in this period that the relevant institution cancelled his registration in the Bachelor Course. The appellant said that during this period, he did not see a doctor as he believed there was a stigma associated with depression, but he now realised he should have sought medical help. He explained that he was seeking more help, had seen a doctor and had been referred for further treatment. The appellant attached to his written response a copy of “Progress notes” from Dr Aiman Alsayed (a General Practitioner), a referral letter from Dr Alsayed to Mr Medhat Metry (a Psychologist) dated 7 December 2017, a General Practitioner Mental Health Care Plan prepared by Dr Alsayed, the appellant’s answers to a questionnaire about his mental health, and a prescription for Pristiq which is a drug used in the treatment of depression.

8    Dr Alsayed’s referral letter to Mr Metry stated that the appellant’s anxiety and depression disorder “started 6 months ago” and “got worse recently” but also stated that the date of the condition was “15 March 2017”. The Mental Health Care Plan also recorded that the date of the “developmental history” was 16 March 2017. Information in the “progress notes” included that the appellant reported a “6 months history” of symptoms including “difficulty concentrating, remembering details and making decisions”, and “feelings of guilt, worthlessness and/or helplessness”.

9    On 27 February 2018, a delegate of the first respondent (Minister) made a decision to cancel the 2016 Visa. The delegate’s decision records that as the appellant was granted a visa to study in Australia, he was expected to do so. It further records that the appellant ceased his studies in the Bachelor Course on 24 February 2017 and had not recommenced his studies as at the time that his registration in that Course was cancelled on 19 April 2017. The delegate decided to give little weight to the appellant’s claims about this depressive disorder. Whilst the delegate stated that they sympathised with the appellant as to his medical condition, it was observed that the appellant had provided no evidence of an assessment of his emotional or mental health to substantiate his claims regarding his state of mind at the time of the non-compliance, such as a psychologist’s report or letter from a doctor. Given the appellant had decided to pursue a business opportunity, the delegate was not satisfied that there were circumstances beyond the appellant’s control accounting for the failure to comply with a condition of the 2016 Visa (including because he had not sought to defer his studies on compelling or compassionate grounds, etc).

10    On 6 March 2018, the appellant sought a review before the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the delegate’s decision on 30 April 2020 (Tribunal Decision or TD).

11    There was no question raised in the proceedings below (or on this appeal) that the Tribunal had asked itself the right question by considering whether the appellant had breached condition 8202 of Schedule 8 which attached to the 2016 Visa and, if so, whether the Tribunal should exercise the discretionary power under s 116(1) of the Act to cancel the visa. The Tribunal was satisfied that the appellant had not complied with condition 8202 and so the ground for cancellation in s 116(1)(b) was satisfied and the power in s 116(1) to cancel the visa was enlivened. The Tribunal then considered whether to exercise the power to cancel the visa and, in doing so, had regard to the material provided by the appellant and policy guidelines contained in the Department’s Procedures Advice Manual (DPAM).

12    The Tribunal specifically turned its mind to the factors enumerated in the DPAM, including the fourth factor, which provides as follows:

The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing …

13    The Tribunal considered this factor in various parts of its reasons, but particularly at TD [26]-[37], and specifically considered the medical evidence upon which the appellant had relied. At TD [26]-[27], the Tribunal stated:

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

26.     The applicant claims that he has suffered “immense psychological pain” and weight loss through the stress and significant financial loss which arose from his ill-fated business venture. Furthermore, should his visa remain cancelled it would deprive him of the excellent career opportunities that an overseas qualification would afford him in Kuwait where he has family members ready to assist him in finding employment. The applicant has tendered no evidence in support of his claims regarding any future career prospects in Kuwait. However the Tribunal is prepared to accept that a university qualification, particularly from English-speaking countries such as Australia, the USA or the UK would be of some value to the applicant’s future career overseas.

27.     Whilst the Tribunal has some sympathy for the stress and financial loss that the applicant might have experienced in his unsuccessful business acquisition, his foray into this venture was entirely his own decision; it was not a purpose for which his Student visa was granted. Indeed such an investment of time and money would most likely divert the applicant’s attention from the primary purpose for which a Student visa is granted – to engage in study in pursuit of an educational outcome.

28.     The Tribunal finds that the stress and associated hardships that the applicant speaks of arise not from his studies but relate almost entirely to his ill-fated business venture. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa. Given the limited evidence on this factor, the Tribunal does not accept that these would be significant hardships and it gives this factor little weight in favour of exercising its discretion to set aside the visa cancellation.

(Emphasis added.)

14    The Tribunal further considered the appellant’s circumstances at TD [30]:

Circumstances in which ground of cancellation arose

30.    In written submissions and in his oral evidence the applicant claims an ill-fated business transaction (the purchase of a small store) severely strained his and his family’s finances, resulting in him enrolment being cancelled and leading to his depression due to his worsening financial and personal situation. As previously note[d] the applicant’s decision to embark on this business venture was entirely his own. It is a curious decision given that the purpose of his being granted a Student visa was for him to engage in studies in order to achieve an educational outcome.

(Emphasis added.)

15    As to the medical evidence, the Tribunal stated at TD [32]:

32.     With respect to his claims of psychological stress, the applicant has provided no evidence of his undertaking ongoing mental health assessment or financial counselling to assist him in resolving his business woes or indeed to assist him with any difficulties arising from his studies. There is a referral from his general practitioner dated 7 December 2017, with evidence of a mental health assessment and referral to a psychologist. However [the] Tribunal places little weight on this psychologist assessment since the consultation took place after the applicant had been served with a NOICC and it is the applicant’s fear of cancellation of his visa which is likely to have motivated him to seek the consultation rather than any concerns over cessation of his studies. Further there is no evidence that the applicant has pursued any ongoing psychological treatment.

(Emphasis added.)

16    The Tribunal concluded at TD [34]-[35] that:

34.    On the basis of the evidence before the Tribunal, including the applicant’s response to the NOICC and the post-hearing written submission, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control. For one thing the applicant’s decision to embark upon a significant business transaction entirely separate to his studies was his decision alone; it was not the purpose for he was granted a Student visa. Furthermore a visa holder is expected to be aware of visa conditions and obligations yet the applicant failed to contact the Department since he ceased his studies to advice of his circumstances or seek clarification on these matters. Instead he continued to remain in Australia in noncompliance with his student visa condition.

35.     The Tribunal has already observed that the applicant’s primary reason for being in Australia was to pursue his study goals. The Tribunal acknowledges that the applicant’s friends and family have been, and continue to be, supportive of him. However for the applicant to embark upon a significant business venture whilst he is onshore as a temporary visa-holder would appear to be foolhardy at the very least.

17    In the proceedings below, the applicant claimed that the Tribunal’s reasoning was legally unreasonable because it had given little weight to the medical evidence from Dr Alsayed. The primary judge rejected the applicant’s contentions. The primary judge’s critical reasons were as follows at PJ [34]-[37]:

34.    Once one understands the reason the applicant provided the medical evidence to the Department and the content of the medical evidence, the relevance of the medical evidence to the Tribunal’s decision appears to be limited.

35.    The applicant contends in the particulars to the ground in the Amended Application that “it was legally unreasonable for the Tribunal not to have regard to this diagnosis (which is the practical outcome of giving it little weight) on the basis of what might have motivated the applicant to attend the doctor”. There are two problems with this contention. First, it is not correct that the Tribunal had no regard to the medical evidence, or had regard to the medical evidence but placed no weight on it. The Tribunal at [32] placed some weight, albeit “little weight”, on the medical evidence. Second, the Tribunal at [32] provided two reasons for placing little weight on the medical evidence. The second reason, overlooked in the particulars to the ground in the Amended Application, is that “there is no evidence that the applicant has pursued any ongoing psychological treatment”. In circumstances where a reason the applicant provided the medical evidence to the Department was to prove he was “seeking more help” so that he could “continue improving”, that the applicant did not provide evidence that he had obtained ongoing psychological treatment in the period of over two years between December 2017 and April 2020 undermined the strength of the applicant’s claim that he would seek help in the form of psychological treatment so that he could “continue improving”. I consider that it was clearly open to the Tribunal to place “little weight” on the medical evidence for the reasons it gave at [32].

36.    It is stated at AS [7] that “it was legally unreasonable for the Tribunal not to accept the diagnosis of a depressive disorder that predated the issue of the NOICC”. I do not accept that the Tribunal rejected the applicant’s claim that he developed depression. The Tribunal at [30] recorded the applicant’s claims that he developed depression. There is no express finding by the Tribunal rejecting this claim. The Tribunal’s decision to place “little weight on [the] psychological assessment”, for the reasons it gave, did not involve a rejection of the applicant’s claim that he developed depression.

37.    The applicant at AS [8] relies on a proposition in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 522 that “where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own”. It is contended at AS [9] that “the Tribunal has substituted its own theory that any psychological issue that the applicant had was attributable to the issue of the NOICC”. This contention involves a mis-reading of the Tribunal’s reasons at [32]. The Tribunal did not find, or express an opinion, that any psychological issue the applicant had was attributable to the NOICC. The facts in Fuduche are markedly different to the facts in the present matter.

(Emphasis added.)

3.    CONSIDERATION

18    The appeal raises a single ground, articulated as follows:

The primary judge erred in construing the applicant’s claim in his letter of 7 December 2017 to be that it was the failure of his business which caused him to cease studying and that his depression did not occur until after he stopped studying. Whereas the applicant’s claim was that the failure of his business caused him to suffer depression which in turn led to him stopping studying. This error by the primary judge led him to consider that it was open to the Tribunal to conclude the cancellation of the applicant’s enrolment in the Bachelor Course contributed to the applicant’s depression, rather than the depression leading to cancellation of the applicant’s enrolment. It also contributed to the primary Judge’s conclusion that it was clearly open to the Tribunal to place “little weight” on the medical evidence for the reasons that it gave. The latter conclusion is erroneous as the decision of the Tribunal to place little weight on the medical evidence was legally unreasonable.

19    This ground should be rejected. It proceeds on a mischaracterisation of both the Tribunal’s reasons, and those of the primary judge. It also pays insufficient regard to the evidence.

20    As noted above, the evidence was that the appellant had ceased studying on 24 February 2017. The evidence was that in December 2017, Dr Alsayed had diagnosed the appellant as having developed a condition on 17 March 2017. The evidence further indicated that the relevant educational institution cancelled the appellant’s registration in the Bachelor Course on 19 April 2017.

21    Contrary to the appellant’s submissions, the primary judge did not misconstrue the appellant’s claims or the Tribunal’s reasons. The Tribunal did not at TD [30] or [32] or elsewhere reject the appellant’s claim (or the diagnosis of Dr Alsayed) that the appellant had suffered from depression or that it was caused by the failure of his business, which in turn caused him to cease studying. In fact, at TD [28] the Tribunal found that “the stress and associated hardships that the applicant speaks of arise not from his studies but relate almost entirely to his ill-fated business venture”. This was in the context that at TD [27], the Tribunal expressed “some sympathy” (as the delegate had done) for the appellant’s position. The force of the Tribunal’s reasons were that these were matters that were brought about by matters over which the appellant had control in that he had made a voluntary choice to pursue a business opportunity instead of focusing upon his studies which was the purpose of the 2016 Visa. The primary judge’s assessment of the Tribunal’s reasons in this respect at PJ [35]-[36] was correct.

22    Nor do the appellant’s contentions accurately characterise the Tribunal’s reasons for giving little weight to the “medical evidence” at TD [32]. The primary judge correctly pointed out this mischaracterisation in the appellant’s contentions at PJ [35]-[36]. Contrary to the appellant’s contentions, the Tribunal had regard to the “medical evidence” and, as noted above, it clearly accepted that the appellant had suffered stress and associated hardships arising from his ill-fated business venture. The point that the Tribunal was making at TD [32] related to the weight to be placed on the psychological assessment in circumstances where:

(a)    the consultation took place after the NOICC had been served; and

(b)    there was no evidence that the appellant had pursued any ongoing psychological treatment after he had consulted with Dr Alsayed.

23    The appellant submitted that one reason to explain the former was his evidence that he did not seek out medical support earlier due to the stigma associated with mental health issues. However, that evidence did not explain why there was an absence of evidence as to ongoing support and treatment sought after the appellant had consulted with Dr Alsayed. This was the point the primary judge made at PJ [35] that the absence of the appellant having sought ongoing treatment in the period of over two years from December 2017 to the time of the Tribunal hearing in April 2020 undermined the appellant’s claims. The absence of such evidence not only undermined the appellant’s claims that he would seek out such further treatment (given that he had stated he would “seek more help” to “continue improving”), it also cast doubt as to why he had sought out such assistance in December 2017 and not earlier. In those circumstances, there was no unreasonableness or illogicality in the Tribunal’s decision to give “little weight” to this aspect of the evidence. Nor was there any error in the primary judge’s assessment of the Tribunal’s reasons.

24    It is settled that the threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O’Callaghan JJ). For the reasons stated above, I am not satisfied that the appellant has established legal unreasonableness on the part of the Tribunal, or error on the part of the primary judge in failing to so find.

25    I am also not satisfied that the primary judge erred in any respect in assessing the proposition arising from Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 522 (Burchett J). The Tribunal did not substitute its own alleged medical assessment to that of the medical evidence before it. Rather, the Tribunal was assessing and evaluating the weight to be given to that evidence in light of the appellant’s conduct. The primary judge correctly rejected the appellant’s contentions in this respect at PJ [37].

4.    DISPOSITION

26    The appeal should be dismissed and the appellant be ordered to pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    27 August 2026