Elsharkawi v Minister for Immigration and Multicultural Affairs [2025] FCA 293

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

1. The applicant is a citizen of Egypt who arrived in Australia in 2006 on a Subclass 572 Student Visa. Since that time, the applicant has largely continued to reside in Australia as the holder of student visas or associated bridging visas, completing various courses including in English, Business, and Information Technology.
2. In July 2017, the applicant applied for a Student (Temporary) (class TU) visa under s 65 of the Migration Act 1958 (Cth). At that time, the applicant was enrolled in a Bachelor of Business, which was due to commence in August 2017. However, the applicant cancelled his enrolment in November 2017, citing the ill health of his mother and brother, as well as his own mental health, as the reasons for the cancellation.
3. On 6 September 2017, a delegate of the Minister refused to grant the applicant a visa on the basis that he did not meet the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant applied to the former Administrative Appeals Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision but on the ground that cl 500.211(a) of the Migration Regulations was not met. Cl 500.211(a) of the Migration Regulations requires that an applicant is enrolled in a course of study at the time that a decision is made on the application. Cl 500.111 of the Migration Regulations, in turn, relevantly defines "course of study" as "a full-time registered course".
4. On 5 May 2021, the then Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal's decision at a show cause hearing pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules): Elsharkawi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 939 (the primary decision). As such, the order dismissing the judicial review application was interlocutory in nature by virtue of rule 44.12(2) of the FCC Rules and the applicant requires leave to appeal the primary decision under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
5. By his application filed with this Court on 21 May 2021, the applicant applies for an extension of time within which to seek leave to appeal, and leave to appeal, from the primary decision. For the reasons set out below, it is in the interests of justice to grant the application for an extension of time but the application for leave to appeal should be refused.
6. Finally, I note the delay between the filing of the application for an extension of time and leave to appeal and the hearing of the application is because the application was among the backlog of migration matters delayed as a consequence of the COVID-19 pandemic.

2. THE APPLICATION FOR AN EXTENSION OF TIME IS GRANTED

1. By virtue of rule 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. However, as the applicant filed his application on 21 May 2021, it was filed 2 days after the 14-day period expired.
2. The discretion to extend time is not confined by express criteria: Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19] (Finn J). However, the merits of the application for leave to appeal are relevant to the question of whether an extension of time should be granted, as well as other considerations including whether the delay is substantial, the adequacy of any explanation for the delay, any prejudice to the applicant if the application is refused, and whether the respondent would suffer any prejudice if the application is granted even though the mere absence of prejudice to the respondent does not suffice: see, for example, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 (Wilcox J); and Bechara v Bates [2018] FCA 460 at [17] (Perry J). Ultimately, the question of whether to grant an extension of time turns upon what the justice of the case requires in all of the circumstances: Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528 at 531 (quoted with approval by Wilcox J in Hunter Valley at 349).
3. It is true, as I find in the context of deciding whether to grant leave to appeal, that the proposed appeal lacks merit. Nonetheless, as I explained at the hearing on 27 March 2025, I consider that it is in the interests of justice to grant the extension of time within which to seek leave to appeal under rule 35.14 of the Federal Court Rules, having regard to the short period of the delay (2 days) and the absence of any prejudice to the Minister by reason of the delay. Furthermore, the applicant claimed that ill health in the week before the expiry of the 14-day period and confusion about the date on which the application was required to be filed contributed to the delay. I accept that these are credible explanations. In these circumstances, I accept that the applicant has given an adequate explanation for the delay, particularly in circumstances where he is unrepresented. Finally, granting the extension of time in this case had the benefit of simplifying the proceedings for an unrepresented applicant and ensuring that the focus lay upon the real issue, namely, whether any proposed ground of appeal would have a reasonable chance of succeeding. It is presumably for like reasons, in my experience, that government respondents do not necessarily oppose the grant of an extension of time in similar circumstances where the delay is minimal, focusing instead on the issue of whether leave to appeal should be granted.

3. THE LEGAL PRINCIPLES FOR DETERMINING WHETHER TO GRANT LEAVE TO APPEAL

1. A decision to grant leave to appeal is discretionary. The principles which govern the exercise of that discretion are well settled: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). Relevant considerations include:

(1) whether in all the circumstances the primary decision is attended by sufficient doubt to warrant its reconsideration; and

(2) whether substantial injustice would result if leave were refused, supposing the primary decision to be wrong.

1. If no arguable ground of appeal is raised by the applicant, it would be futile to grant leave to appeal and, accordingly, leave should not be granted: BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230 at [25].
2. Further, in considering whether an appeal would have sufficient merit, it will often be appropriate to consider the proposed grounds of appeal at a "reasonably impressionistic level": see, by analogy, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). However, there are other cases where a closer examination of the merits is appropriate: Tu'uta Katoa at [18]. In this case, the applicant's proposed ground of appeal lacks any merit on its face. This case is therefore not a case where there is a reason to examine the merits of the proposed ground of appeal other than at a reasonably impressionistic level.

4. THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED

1. For the following reasons, the application for leave to appeal is dismissed.
2. First, the applicant's proposed ground of appeal lacks merit. The draft notice of appeal identifies only one ground of appeal, namely:

I meet all the requirements and conditions to grant my student visa.

1. The orders sought are that the Minister and the Tribunal grant the applicant a visa.
2. However, while it is understandable that the applicant, being unrepresented, would focus upon the merits of his claim for a visa, it is not within the jurisdiction of this Court or the Federal Circuit Court to grant the applicant a visa or to determine whether he meets the requirements and conditions for the grant of a visa. The Federal Circuit Court was limited to deciding whether the Tribunal's decision was invalid because of the existence of a jurisdictional error: see, for example, AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 16 at [13]- [14] (Perry J). A jurisdictional error is a material error of law such as a misunderstanding by the Tribunal of the correct legal criteria for the grant of a visa under the Migration Act or a failure to comply with a procedural fairness requirement under the Migration Act such as extending an invitation to the applicant to attend a hearing. In turn, the role of this Court on appeal is to determine whether the primary judge's decision dismissing the application for judicial review was infected by appealable error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [31] (Gageler J, Edelman J relevantly agreeing at [153]). It follows, as I explained in AJX17 at paragraph [14] that:

The question of whether or not the Federal Circuit Court (or this Court on appeal) agreed with the Tribunal's decision is not, therefore, a basis for finding that the Tribunal's decision was invalid. Nor is it relevant that the appellant strongly disagrees with critical findings by the Tribunal.

1. The proposed ground of appeal identified by the applicant cannot therefore succeed because: (1) neither this Court nor the Federal Circuit Court can review the merits of the Tribunal's decision; and (2) the orders seeking the grant of a visa cannot be made either by this Court or the Federal Circuit Court.
2. Secondly, the primary judge was plainly correct to dismiss the application for judicial review (although his Honour's reasons were deficient as I explain and as the Minister identified).
3. The Tribunal wrote to the applicant on 24 July 2019, requesting evidence that he was currently enrolled in a course of study, as is required for the grant of the visa. In the applicant's email in response on 6 August 2019, he stated that he had cancelled his enrolment in November 2017. The applicant raised compassionate considerations in support of his application for review before the Tribunal, together with his intention to resume studies in the following year.
4. At the hearing on 7 August 2019, the Tribunal again advised the applicant that he must be enrolled in an approved course of study at the time of decision to be eligible for a visa and again asked the applicant about his enrolment in a Bachelor of Business. In response, the applicant confirmed that he had not yet commenced the course and relied upon the same compassionate considerations as those raised in his email of 6 August 2019.
5. Given that the applicant accepted that he was not currently enrolled in any course, the Tribunal was not satisfied that the applicant was enrolled in a course of study at the time of its decision and accordingly found that cl 500.211(a) of the Migration Regulations was not met. The Tribunal also found that the applicant did not claim to meet any of the alternative criteria in cl 500.211 of the Migration Regulations. As cl 500.211 of the Migration Regulations imposes a mandatory requirement for the grant of a visa, requiring that the applicant be enrolled in a course of study at the time of the Tribunal's decision, the Tribunal's decision to refuse the grant of the visa was inevitable. In other words, it was not open to the Tribunal to make a different decision based on compassionate grounds.
6. Thirdly, while the published reasons of the primary judge were deficient, that does not ultimately afford a reason in this case to allow the application for leave to appeal. Of greatest concern is the fact that at paragraph [7] of the primary judge's reasons, his Honour stated:

For the reasons set out in the Minister's submissions above, none of the four grounds in the amended application raise an arguable case for the relief claimed.

1. Importantly, however, the primary judge's reasons did not include the reasons in the Minister's submissions which his Honour apparently intended to adopt as his reasons. As such, it is not at all self-evident that: (1) the primary judge provided reasons for his conclusion that each of the grounds in the amended application should be rejected, and/or (2) that he performed the judicial function of independently considering each ground. These concerns are heightened in circumstances where the primary judge adopted in his published reasons and quoted in full, the totality of the background and summary of the Tribunal's decision as set out in paragraphs [3] to [19] of the Minister's written submissions in the Federal Circuit Court proceeding.
2. The fact that migration is a high-volume jurisdiction does not detract from the seriousness of a judicial officer's decision on judicial review for the individual concerned; it also does not justify the provision of reasons which fail to reach the minimum standard of exposing the judge's thought-processes and demonstrating that the judge brought an independent mind to bear on the issues. Rather, as the Full Court of the Federal Court held in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [47]- [48]:

The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if ... by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

However, the reasoning on the basis of which the primary judge reached his decision in this case is not revealed by his reasons. The primary judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the primary judge considered fundamental aspects of the appellant's case ...

1. Despite my serious concerns, however, the deficiencies in the primary judge's reasons do not ultimately justify allowing the application for leave to appeal. As I held, the primary judge's decision to dismiss the application for judicial review was plainly correct, there being no jurisdictional error in the Tribunal's decision.

1. In circumstances, therefore, where the proposed ground of appeal has no reasonable prospects of success, it is not in the interests of justice to grant the application for leave to appeal. Accordingly, the application for leave to appeal is dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.