Federal Court of Australia

Hameed v Minister for Immigration and Citizenship [2026] FCA 1469

ORDERS

THE COURT ORDERS THAT:

1.    Both the application for an extension of time and leave to appeal dated 6 April 2025 and filed 8 April 2025, and the amended application for leave to appeal dated 15 May 2025 and filed 16 May 2025, be dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), by reason of the applicant being absent at the time and date listed for hearing.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This appeal proceeding was commenced by an application for extension of time and leave to appeal filed by the applicant on 8 April 2025, in respect of a decision of a judge of Division 2 of the Federal Circuit and Family Court of Australia delivered on 27 February 2025: Hameed v Minister for Immigration and Multicultural Affairs (No 3) [2025] FedCFamC2G 217 (primary judgment or PJ). An extension of time was required because the applicant did not file an application for leave to appeal within 14 days as required under r 35.13(a) of the Federal Court Rules 2011 (Cth). On 16 May 2025, the applicant filed an amended application for leave to appeal which added particulars to the grounds for granting leave to appeal, but did not explicitly apply for an extension of time. However, an extension of time was still required, and the applicant maintained her request for an extension of time in her written submissions filed 10 August 2026. As such, it is appropriate to treat that document as being in effect an application for an extension of time and leave to appeal, notwithstanding that it did not separately specify the grounds on which an extension of time should be granted.

2    After the applicant failed to attend the hearing of her application for an extension of time and leave to appeal on 17 August 2026, rather than proceeding in her absence, I made an order under r 35.33(1)(a)(i) of the Federal Court Rules dismissing the application. The following records the factual background relating to her non-attendance and that order being made.

3    The hearing of the application was listed for 10:15am on 17 August 2026. The applicant was notified of that listing by email from the Court’s Migration Team sent on 1 June 2026. She acknowledged the listing in subsequent communications with the Court.

4    At 8.39 am on the morning of the hearing, the applicant emailed the Court’s Migration Team in the following terms:

Dear Registry,

I am writing to inform the Court that I am unable to attend today’s hearing because I am not feeling well.

I apologize for any inconvenience caused.

Kind Regards,

Ayesha Hameed

Court file number: NSD516/2025

Hearing date: 17.08.2026

5    There was no prior contact by the applicant with the Court about not attending. The applicant said in her email only that she was not feeling well. There was no evidence that she was unable to attend court, let alone medical evidence to the effect that the nature and extent of her illness was such that she met any reasonable threshold for non-attendance. The Court was left with nothing more than the fact of her non-attendance, and the fact that this was deliberate.

6    To the extent that the applicant’s email might have been interpreted as an application for an adjournment, that application was opposed by the first respondent, the Minister for Immigration and Citizenship, upon the basis that she did not provide any medical evidence or documentation to indicate that she could not participate in the hearing. If the email did constitute an application for an adjournment, I agreed with the Minister’s reasons for opposing it, and refused to grant it.

7    When the proceeding was called for hearing, it was also called outside the courtroom three times. Consistently with the applicant’s email, she did not attend. The Minister applied for the application for an extension of time and the amended application for leave to appeal to be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules, on the basis that the applicant was absent when it was called on for hearing. I was satisfied that the amended application should be dismissed upon that basis, and that no hearing should take place in the applicant’s absence. As such, r 35.33(2) was not engaged and there is no basis for any application to be made under that rule for an order setting aside or varying the order made, or for the further conduct of any hearing.

8    While no hearing took place in the absence of the applicant, it is worth shortly saying something about the applicant’s case, and in particular why it could never have succeeded.

9    As outlined above, the applicant had applied for an extension of time and leave to appeal from the primary judgment delivered on 27 February 2025 (the application). Briefly, the procedural history relating to the application is as follows:

(a)    On 7 March 2019, the applicant applied for a Student (Temporary) (class TU) (Subclass 500) visa.

(b)    On 3 April 2019, a delegate of the Minister refused her application for the student visa.

(c)    On 18 December 2020, the then Administrative Appeals Tribunal, now the successor body, the Administrative Review Tribunal, the second respondent, affirmed the decision of the Minister’s delegate.

(d)    On 5 November 2024, a registrar of the Federal Circuit Court summarily dismissed the applicant’s application for judicial review of the Tribunal’s decision under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Federal Circuit Court Rules) on the basis that it had no reasonable prospects of success: Hameed v Minister for Immigration and Multicultural Affairs [2024] FedCFamCG 1146.

(e)    On 16 December 2024, the primary judge dismissed the applicant’s application for review of the registrar’s decision under r 13.06(1)(d) of the Federal Circuit Court Rules (registrar review application) because she did not attend the hearing of that application: Hameed v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamCG 1362.

(f)    On 27 February 2025, the primary judge delivered the primary judgment, refusing the applicant’s application under r 17.05 of the Federal Circuit Court Rules to reinstate the application for review of the registrar’s decision. The applicant did attend the hearing of the reinstatement application, and it is from this decision which the applicant sought an extension of time and leave to appeal.

10    The delegate’s decision to refuse the grant of the student visa applied for by the applicant was based on a lack of satisfaction that the applicant was a genuine applicant for entry and stay as a student. Meeting that criterion was necessary for her to obtain the visa she had applied for. By the time of the Tribunal’s decision, the applicant was unable to satisfy a different mandatory criterion for the visa that was sought, on the basis that she was not enrolled in a course of study. The applicant did not dispute that she was not enrolled in a course of study, but rather relied upon medical and other reasons to explain why that was the case.

11    An applicant for a student visa that has a mandatory criterion of enrolment in a course of study cannot successfully rely upon any reason for their failure to meet that criterion. There may be a myriad of entirely sound reasons for that being the situation. But the requirement is immovable. Either the applicant is so enrolled, and meets that mandatory criterion; or the applicant is not so enrolled and does not meet that criterion. If the criterion is not met, then the decision-maker has no choice. The grant of the visa must be refused.

12    The absence of the necessary enrolment was the sole basis for the Tribunal, on 18 December 2020, affirming the delegate’s decision to refuse the grant of the student visa. It was not necessary for the Tribunal to consider and affirm the reason the delegate made that decision. To the contrary, it was sensible and appropriate for the Tribunal to affirm the delegate’s decision on the basis that the applicant failed to meet an indispensable and incontestable criterion for the grant of the visa. There is no doubt that the applicant was not enrolled in a course of study at the time of the Tribunal’s decision: she conceded as much in seeking to explain how that had come about.

13    Had the application progressed to a hearing, the real issue in this proceeding would have been the grounds for seeking leave to appeal. If they had been sound, it is unlikely that the extension of time would have been much of an issue.

14    In the primary judgment regarding the reinstatement application, the primary judge considered the following factors as relevant to his Honour’s discretion, in line with the relevant authorities:

(a)    whether the applicant had a reasonable excuse for her failure to attend the hearing of the registrar review application;

(b)    the existence and nature of the prejudice to the other parties which might flow from reinstatement; and

(c)    whether the applicant had arguable or reasonable prospects of success on the registrar review application.

15    The primary found that prejudice weighed neutrally in relation to the reinstatement application: PJ [69]. His Honour considered the explanation provided by the applicant in oral submissions for her non-attendance, and the medical evidence provided. His Honour assessed them to be insufficient, and accordingly found that the applicant did not have a reasonable excuse for her non-attendance at the hearing of the registrar review application: PJ [38]-[43].

16    In relation to the applicant’s prospects on the registrar review application, the primary judge considered the grounds the applicant sought to advance to overturn the registrar’s orders for summary dismissal, and as part of that, considered the applicant’s grounds for judicial review of the Tribunal’s decision. Those grounds essentially contended that the Tribunal:

(a)    should have allowed the applicant more time to rectify her non-enrolment;

(b)    did not adequately inform the applicant of the significance of her enrolment status;

(c)    did not adequately consider the reasons for the delay in her studies; and

(d)    should have allowed her more time to provide medical evidence relevant to that delay.

17    The primary judge concluded none of those grounds had any arguable or reasonable prospects of success (PJ [48]-[68]). His Honour’s reasons for that conclusion can be summarised for present purposes as follows:

(a)    The applicant neither asked for time to obtain a new certificate of enrolment, nor indicated that she could do so, nor expressed any interest in doing so. That is understandable, because, as outlined below, the applicant had been on notice of the significance of her enrolment status for at least eight months prior to the Tribunal hearing and had apparently done nothing to address it. As such, the primary judge found there was no legal unreasonableness involved in not giving more time that had never been sought.

(b)    The Tribunal had, in a letter to the applicant dated 23 April 2020, put the applicant clearly on notice that an issue in the merits review of the delegate’s decision was whether she was enrolled in a course of study. A further letter to a similar effect was sent on 3 November 2020. The applicant had eight months between 23 April and 18 December 2020 to arrange for enrolment in a course of study. The primary judge concluded that the Tribunal had discharged its obligation to notify the applicant that her enrolment was an issue in relation to the decision under review.

(c)    The primary judge considered that the Tribunal did not err in failing to consider the reasons advanced for the applicant not being enrolled or to allow additional time for her to provide evidence in that regard, because those reasons could not change the fact that she was not so enrolled at the time of the Tribunal decision.

18    As a result, his Honour considered it was not in the interests of justice to reinstate the registrar review application: PJ [70].

19    On 8 April 2025, the applicant filed in this Court an application for an extension of time and leave to appeal dated 6 April 2025, as well as an affidavit in support of that application. The grounds for leave to appeal were unchanged in the amended application for leave filed on 15 May 2025 save for the addition of particulars, and are outlined below. The grounds for the extension of time were outlined in the affidavit as follows:

[3]    I believe that that Honourable Judge failed to exercise discretion, procedural fairness and take into consideration critical evidence when deciding the matter before him in the Federal Circuit Court.

[4]    I believe that there are reasonable grounds of appeal on the basis of procedural fairness.

[5]    I have overlooked the date of filing was to be done in 14 days and by mistake became out of time.

20    The proposed grounds of appeal are set out in an accompanying draft notice of appeal dated 6 April 2025 and received by this Court on 8 April 2025. Those proposed grounds of appeal were not amended, and read as follows:

[1]    The Court below erred in not exercising its discretion to allow the application to be reinstate.

[2]    The appellant believes that the court below did not exercise procedural fairness and its discretion when determining the matter. The applicant believes that if the Court below considered significant matters of the case, then the outcome would be materially different.

21    On 15 May 2025, the applicant filed an amended application for leave to appeal, which no longer referred to an extension of time being sought. The grounds for leave to appeal were identical to those set out in her initial application, with the addition of particulars, as follows:

[1]    The applicant seeks leave to appeal the judgement of Judge Zipser as there are reasonable prospects of appeal.

Particulars

(a)    the applicant submitted evidence of her medical issues and these medical evidence should have been taken into consideration

(b)    if these medical evidences were taken into account, then the outcome would have been different and favourable to the applicant.

[2]    The applicant seeks leave to appeal in order to the fundamental principles of natural justice and procedural fairness.

Particulars

(a)    There was a failure to consider relevant documents and submissions provided by the applicant.

[3]    The applicant seeks leave to appeal so that all crucial matters not taken into consideration previously by the lower court can be taken into consideration to reach a fair outcome.

Particulars

(a)    The court did not engage with or give weight to material facts highlighted in the applicant's submissions, such as prior visa compliance, educational progression and genuine intention to study. These factors were directly relevant to assessing the applicant's genuine purpose and intent.

22    The Minister filed and served detailed written submissions explaining the history of the proceedings, opposing the application for an extension of time and leave to appeal, and seeking costs. The applicant also filed written submissions.

23    Having reviewed the primary judgment, I consider there was no realistic possibility that the applicant would have been able to succeed on this appeal, had it progressed to a hearing. The primary judge’s reasons were comprehensive and sound, and do not admit of the errors which the applicant alleged. Accordingly, if this proceeding had gone to a hearing, which it did not, I consider that the result would inevitably have been that the application for leave to appeal would have been refused.

24    As already noted, the applicant did not appear on the date the application for an extension of time and leave to appeal dated 6 April 2025 and filed 8 April 2025 were listed for hearing, which necessarily covered the amended application for leave to appeal dated 15 May 2025 and filed 16 May 2025. As a result, both were dismissed for non-attendance under r 35.33(1)(a)(i) of the Federal Court Rules, with costs.

Associate:

Dated:    6 October 2026