Habib v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1347
•20 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Habib v Minister for Immigration and Citizenship [2025] FedCFamC2G 1347
File number(s): SYG 866 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 20 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa –whether Tribunal failed to consider circumstances concerning applicant – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12
Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2021] FCA 64
NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 30 July 2025 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the Respondents: Mr T Qian (Mills Oakley) ORDERS
SYG 866 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANA MUDASSAR HABIB
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
20 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 18 May 2021, the applicant filed an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 14 April 2021. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:
The applicant is a genuine applicant for entry and stay as a student because:
(a)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 intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether an applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
FACTUAL BACKGROUND
In April 2016, the applicant, a citizen of Pakistan, first arrived in Australia as the holder of a subclass 573 temporary student visa.
On 7 September 2018, the applicant applied for a subclass 500 student visa on the basis of his enrolment in a Diploma of Business and an Advanced Diploma of Leadership and Management at an educational institution in Australia.
On 16 January 2019, a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of Schedule 2.
On 1 February 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 19 October 2020, the Tribunal invited the applicant to attend a hearing by telephone on 11 November 2020 to give evidence and present arguments.
On 11 November 2020, the applicant appeared at the hearing before the Tribunal by telephone, with the assistance of his representative.
On 14 April 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal at [8] stated that the issue on review was whether the applicant satisfied the criterion in cl 500.212.
The Tribunal at [10]-[12] summarised the evidence before the Tribunal.
The Tribunal at [13] noted that it must have regard to Direction 69 and the specified factors listed in paragraph 4 above.
The Tribunal at [17]-[22] considered the applicant’s circumstances in his home country. The Tribunal at [18] found that “the applicant has no community ties in his home country that would provide him with any significant incentive to return there at the completion of his studies in Australia”. The Tribunal at [19] found that “the applicant’s economic circumstances in his home country do not give him any significant incentive to return there at the end of his studies in Australia”. The Tribunal at [22] found that, weighing various considerations, “the applicant’s circumstances in his home country provide some, although not strong, support to his claim to be a genuine temporary entrant”.
The Tribunal at [23]-[27] considered the applicant’s potential circumstances in Australia. The Tribunal at [27] found that “his employment [in Australia] does provide him with an incentive to stay in Australia”.
The Tribunal at [28]-[30] considered the value of the applicant’s courses for his future. The Tribunal at [30] concluded that it was “unable … to see any value in the applicant’s studies and proposed studies for his future, and finds that they do not have any such value”.
The Tribunal at [31]-[45] considered the applicant’s immigration history. The Tribunal at [39] noted “a number of significant gaps in the applicant’s enrolments”. The Tribunal at [42] stated that “the applicant’s study record also reveals a number of breaches of the conditions placed on his original TU-573 student visa”. The Tribunal at [45] concluded that it was “not satisfied that the applicant’s immigration history … is that of a person who genuinely intends to return to his home country at the end of his studies”.
The Tribunal at [46] concluded in relation to cl 500.212(a) that, taking the above matters into account, “the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily”.
The Tribunal at [47]-[49] considered whether the applicant satisfied cl 500.212(b). The Tribunal at [49] concluded that it was “not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b)”.
It followed from the above that, as found by the Tribunal at [52], the applicant did not satisfy cl 500.212.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 30 July 2025
On 18 May 2021, the applicant filed in this Court an application for judicial review of the Tribunal’s decision (Application). The Application contained the following grounds (as written):
1. My student visa was refused the delegate after finding that clause 500.212 is not met. The delegate did not find me as a genuine applicant for stay as a student.
2. The department failed to consider the compelling reasons and circumstances presented to them.
3.I applied for the AAT for the merits review on my case.
4.The tribunal conducted the hearing on 11th November 2020 and affirmed the decision of the department to refuse my student visa.
5. The Tribunal only considered the past breach of visa condition and did not consider my current circumstances in which I was fully compliant with all visa conditions
6. The Member failed to consider that the delegate did not accord to the applicant procedural fairness and natural justice.
7. I presented two CoEs, one for Advanced Diploma of Leadership and Management from Pacific College which I have successfully completed, followed by another CoE of Graduate Diploma of Management which will be finishing in May 2022. Both CoE are attached herewith. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [50].
8. The decision of the member is affected by the jurisdictional error and was not determined according to law as the circumstances at the time of application were not considered and overlooked.
9. The Member also paid no heed towards my current circumstances at the time of review application and only considered the past circumstances which demonstrates the error in the decision.
10. The Member erred in affirming the departmental decision without considering my circumstances and its implications on my future and family
Following a period of inactivity, on 25 February 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicant sought to rely.
On 21 May 2025, the registry of the Court notified the parties that the matter was listed for hearing on 30 July 2025.
On 13 July 2025, the first respondent filed a written submission (RS).
The applicant did not file a written submission or any other documents prior to the hearing.
Hearing on 30 July 2025
At the hearing in this Court on 30 July 2025, the applicant appeared unrepresented. Triston Qian of Mills Oakley appeared for the first respondent.
The applicant did not bring to the hearing a copy of the Court Book filed and served by the first respondent in July 2021 which contained the Tribunal’s decision and documents before the Tribunal. Mr Qian gave the applicant a second copy of the Court Book.
At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision in the Court Book. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.
I offered the applicant a break of 10 minutes to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.
After the break, Mr Qian tendered the Court Book.
The applicant did not wish to tender any additional documentary evidence.
I invited the applicant to make closing oral submissions. The applicant stated that there was no error in the Tribunal’s decision. He said that, following his arrival in Australia, he attempted to study hard, he is serious about his studies, he recently completed a Certificate III course, and he is presently undertaking an Advanced Diploma of Leadership and Management.
The applicant stated that he did not want to challenge the Tribunal’s decision, but now his situation in Australia is different.
Mr Qian, in his oral submissions, principally relied on the first respondent’s written submission filed in July 2025.
CONSIDERATION
Grounds 1, 3 and 4
Grounds 1, 3 and 4 are statements of facts relating to the procedural history of the applicant’s student visa application. They are not grounds of review.
Grounds 2 and 6
Ground 2 complains that “the department” failed to consider “the compelling reasons and circumstances”. Ground 6 complaints that “the delegate did not accord to the applicant procedural fairness and natural justice”.
In light of s 476(2)(a) and (4) of the Act, the Court “has no jurisdiction in relation to” (s 476(2)) the delegate’s decision.
Further, these grounds lack particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].
These grounds do not identify a jurisdictional error in the Tribunal’s decision.
Grounds 5, 8, 9 and 10
Each of these grounds complains that the Tribunal failed to consider aspects of the applicant’s “circumstances”.
Ground 5 complains that the Tribunal “did not consider my current circumstances in which I was fully compliant with all visa conditions”. Ground 8 complains that the Tribunal did not consider and overlooked “the circumstances at the time of application”. Ground 9 complains that the Tribunal did not consider the applicant’s “current circumstances at the time of review application”. Ground 10 complains that the Tribunal did not consider the applicant’s “circumstances and its implications on [his] future and family”.
However, first, it is clear from the Tribunal’s detailed reasons for decision that the Tribunal considered the applicant’s circumstances at the time of his application for a student visa, and at the time of the Tribunal’s decision. Second, the applicant does not identify a particular “circumstance” which the Tribunal did not consider or overlooked. Third, in circumstances where the applicant was unrepresented, on application of the approach in Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the Tribunal’s reasons”. I cannot identify a circumstance which the Tribunal clearly failed to consider or overlooked. Fourth, in relation to the applicant’s complaint that the Tribunal did not consider “implications on [the applicant’s] future and family”, this is not a factor required by Direction 69 to be considered. Fifth, to the extent that the applicant may complain about the weight the Tribunal placed on various matters, as stated at RS [55], “it is for the Tribunal … to assess the strength of the evidence and determine what weight to afford to the evidence and what inferences may be drawn from it” and “it was up to the Tribunal to determine the weights to be given to the applicant’s past breaches of visa conditions and his current circumstances”.
For the reasons in the above paragraph, these grounds do not identify a jurisdictional error in the Tribunal’s decision.
Ground 7
Ground 7 appears to complain that the Tribunal failed to consider two CoEs provided to the Tribunal. However, the Tribunal clearly considered, and did not dispute the authenticity of, the two CoEs at [38(d)] and [43].
This ground does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Qian sought an order that the applicant pay the first respondent’s costs in the amount of $6,100 which was less than the first respondent’s solicitor/client costs.
The applicant stated that he could not afford this amount. However, that the applicant might have difficulty meeting a costs order “does not provide a principled basis for not making a costs order”: Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the respondent to incur legal costs. I consider that his limited financial position does not affect a determination of an appropriate amount in the present matter.
In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12 at [69]), I consider the amount of $6,100 sought by the first respondent is reasonable.
I will make the order sought by Mr Qian.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 20 August 2025
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