Raise v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1562

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Raise v Minister for Immigration and Citizenship [2025] FedCFamC2G 1562 

File number(s):

SYG 596 of 2022

Judgment of:

JUDGE ZIPSER

Date of judgment:

25 September 2025

Catchwords:

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – finding by Tribunal that applicant did not intend genuinely to stay in Australia temporarily – no point of principle – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 65, 476, 499

Migration Regulations 1994 (Cth) cl 500.212 of Sch 2

Cases cited:

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594

NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of hearing:

8 September 2025

Applicants:

In person

Solicitor for the Respondents:

Finn Ryan (Australian Government Solicitor)

ORDERS

SYG 596 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ZOUYA RAISE ZOUYA RAISE

First Applicant

HAMEED SYED

Second Applicant

ZOHRA FATIMA SYEDA (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	25 SEPTEMBER 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 first and second applicants pay the first respondent’s costs in the sum of $5,400.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 13 April 2022, the applicants lodged 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 31 March 2022. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Student (Temporary) (Class TU) (subclass 500) visas under s 65 of the Act.

2. For the reasons that follow, the application to this Court is dismissed.

   LEGISLATION

3. 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.

4. 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

5. The first applicant (Applicant) and second applicant are wife and husband respectively. The third applicant (born in 2016) and fourth applicant (born in 2018) are children of the Applicant and second applicant.

6. In April 2017, the Applicant, a citizen of India, arrived in Australia as a dependent on the second applicant’s subclass 457 visa.

7. On 18 December 2020, the Applicant applied for a subclass 500 student visa as the primary applicant. The second to fourth applicants were listed as members of the family unit.

8. On 27 September 2021, a delegate of the first respondent refused to grant the applicants visas on the basis that the Applicant did not satisfy cl 500.212 of Schedule 2 to the Regulations.

9. On 7 October 2021, the applicants applied to the Tribunal for review of the delegate’s decision.

10. On 9 February 2022, the Tribunal invited the applicants to attend a hearing by telephone on 25 February 2022.

11. On 25 February 2022, the Applicant and second applicant attended the hearing before the Tribunal by telephone, to give evidence and present arguments.

12. On 31 March 2022, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants student visas.

    TRIBUNAL’S DECISION

13. The Tribunal at [7]-[10] identified the issue in this case was whether the Applicant was a genuine temporary entrant pursuant to cl 500.212(a) of Schedule 2 to the Regulations. The Tribunal noted that it must have regard to Direction 69 in considering whether the Applicant satisfied cl 500.212(a).

14. The Tribunal at [11]-[41] summarised the evidence before it, comprising evidence given by the Applicant and the second applicant at the hearing on 25 February 2022, and documents provided by the applicants to the Tribunal prior to the hearing.

15. The Tribunal at [42] made an upfront observation that “the evidence of the [A]pplicant was often unresponsive to the question, vague, imprecise or discursive” and “often the evidence of the [A]pplicant contained elements of all these issues”.

16. The Tribunal at [49] considered the Applicant’s circumstances in her home country. The Tribunal was “not satisfied that there is a significant incentive for the [A]pplicant to return to India”.

17. The Tribunal at [50] considered the Applicant’s potential circumstances in Australia. The Tribunal considered “that the length of the proposed stay suggests that the [A]pplicant is studying for the purposes of staying in Australia”, “this is not the conduct of a genuine temporary student”, and “it is consistent with the [A]pplicant having decided to extend her stay in Australia by using the student visa programme”.

18. The Tribunal at [51]-[54] considered the value of the course to the Applicant’s future. The Tribunal at [54] was “not satisfied that the [A]pplicant has established that study will provide her with significant economic benefits in her proposed career plan”, and “the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications”. The Tribunal at [57] added it was “not satisfied that the [A]pplicant has demonstrated the value of her proposed course to her future”.

19. The Tribunal at [60] concluded, after considering all information provided by the Applicant in support of her application, “the Tribunal is not satisfied that the information the [A]pplicant has provided regarding the [A]pplicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the [A]pplicant is a genuine temporary entrant”. It followed that, as found by the Tribunal at [63], the Tribunal was not satisfied that the Applicant intends genuinely to stay in Australia temporarily and the Applicant did not satisfy cl 500.212(a).

    PROCEEDING IN THIS COURT

    Judicial review application and steps up to hearing on 8 September 2025

20. On 13 April 2022, the applicants lodged an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application contained the following grounds (as written):

    1.        The issue in this case whether the Tribunal understood that I was a genuine temporary entrant. From the evidence given the Tribunal misunderstood my statement and the reasons why I applied for student visa and the genuine intention and the purpose of the student visa which cannot be denied i.e. Certificate IV in Commercial Cookery which commenced in February 2021 and is scheduled to be completed in August 2022.

    2.        The Tribunal misunderstood my purpose as well as the strong incentive to return to India as stated to the Member.

    3. Contrary to the comment by the Tribunal my answers were straightforward and not vague.

    4. The Tribunal failed to properly consider my circumstances in India and my strong ties to India and why I applied for a student visa even though late.

    5.        The Tribunal failed to see that I am the mother of two dependent young girls and I am genuine temporary entrant and I have a genuine intention to complete my study and return back home.

    6.The Tribunal has no reasons to deny the significant benefit in my proposed career plan.

    7.        The Tribunal's reasoning is not reasonable.

21. On 6 July 2022, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicants file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars of the grounds of the application and any additional evidence on which the applicants sought to rely.  

22. Following a period of inactivity, on 30 July 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 8 September 2025.

23. On 25 August 2025, the first respondent filed a written submission.

24. The applicants did not file a written submission or any further documents prior to the hearing.

    Hearing on 8 September 2025

25. At the hearing in this Court on 8 September 2025, the Applicant appeared unrepresented, assisted by a Hindi interpreter. The remaining applicants were in the court room. Finn Ryan from the Australian Government Solicitor appeared for the first respondent.

26. The Applicant brought to the hearing a copy of the Court Book, filed and served by the first respondent in July 2022, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the Applicant’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to considering whether there is 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 applicants to win the Court proceeding, the Applicant must persuade the Court there is a jurisdictional error in the Tribunal’s decision.

27. I offered the Applicant a 10 minute break to consider oral submissions she wanted to make. The Applicant took up this opportunity.

28. After the break, Mr Ryan tendered the Court Book.

29. I invited the Applicant to make closing oral submissions. The Applicant made some submissions which are addressed below.

30. Mr Ryan, in his oral submissions, principally relied on the first respondent’s written submission filed in August 2025.

    CONSIDERATION

    Grounds in Application

    Grounds 1 to 3

31. The applicants complain that the Tribunal “misunderstood [the Applicant’s] statement and the reasons [she] applied for student visa and the genuine intention” and the Tribunal “misunderstood [the Applicant’s] purpose as well as the strong incentive to return to India”. These grounds appear to disagree with the Tribunal’s findings:

    (a)at [50] that the Applicant “decided to extend her stay in Australia by utilising the student visa programme” and at [61] that “the evidence suggests that the [A]pplicant has enrolled in the present course for the purposes of securing a further student visa rather than due to a genuine interest in study”;

    (b)at [49] that “the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India” and at [58] that the Applicant’s “incentive to return to India [is] minimal”; and

    (c)at [59] that “the Tribunal is not satisfied that the [A]pplicant is a genuine temporary entrant for further stay as a full time student” and at [61] that the Applicant “does not have a genuine intention to stay in Australia temporarily”.

32. That the Applicant disagrees with these findings does not identify an error, let alone a jurisdictional error, in the findings.

33. A re-occurring complaint in the Applicant’s grounds in the Application and in her submission to the Court at the hearing on 8 September 2025 concerns the Tribunal’s findings to the effect that the Applicant has little incentive to return to India – see at [49], [56] and [58]. As explained in paragraphs 35 and 36 below, the Tribunal carefully considered the Applicant’s evidence concerning this matter. That the Applicant disagrees with the findings does not identify an error, let alone a jurisdictional error, in the Tribunal’s findings.

34. At the hearing on 8 September 2025, the Applicant added that she could not study between 2017 and 2020 because she had an 11 month old daughter with developmental delays. I asked the Applicant to identify when she made this submission to the Tribunal, or where the Tribunal dealt with the submission. The Applicant did not identify when she made this submission to the Tribunal.

    Grounds 4 and 5

35. The applicants complain in ground 4 that the Tribunal “failed to properly consider [the Applicant’s] circumstances in India and my strong ties to India”. However, it is evident from the Tribunal’s decision that the Tribunal carefully considered the Applicant’s evidence concerning her ties to India. For example, the Tribunal stated at [49], [56] and [58]:

    [49]The Tribunal has considered the applicant's circumstances in her home country. The applicant is from India. The applicant has provided evidence of direct family ties to her home country which act as incentives to return. The Tribunal finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

    …

    [56]The Tribunal has considered the applicant's economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to India.

    …

    [58]The Tribunal does give weight to the evidence that since the applicant's arrival in Australia on 20 April 2017 the applicant has spent nearly 5 years in Australia and returned to India on one occasion for a period of 60 days, has no employment history in India, owns no assets in India, has stable employment in Australia, her husband and two children, one of which was born in Australia, all residing [in] Australia, all of which indicates that she does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant's incentive to return to India to be minimal.

36. That the Applicant is dissatisfied with the Tribunal’s findings does not identify an error, let alone a jurisdictional error, in the findings of the Tribunal.

37. The applicants complain in ground 5 that the Tribunal failed to consider that the Applicant is a “genuine temporary entrant” and had “a genuine intention to complete my study and return back home”. Again, the Applicant is merely expressing disagreement with the Tribunal’s findings. This does not identify an error, let alone a jurisdictional error, in the Tribunal’s findings.

    Ground 6

38. The applicants complain that the “Tribunal has no reasons to deny the significant benefit in my proposed career plan”. This complaint asserts disagreement with the Tribunal’s findings:

    (a)at [54] that “the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications”; and

    (b)at [57] that “the Tribunal is not satisfied that the [A]pplicant has demonstrated the value of her proposed course to her future”.

39. Again, that the applicants disagree with these findings does not identify an error, let alone a jurisdictional error, in the findings of the Tribunal. In the meantime, the Tribunal, in its statement of reasons, gave reasons in support of its findings in the above paragraph.

    Ground 7

40. The applicants assert that “the Tribunal’s reasoning is not reasonable”. This ground lacks 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].

41. For the above reasons, the grounds in the Application do not identify a jurisdictional error in the Tribunal’s decision.

    Matters raised by Applicant at hearing on 8 September 2025

42. The Tribunal at [38] referred to the second applicant’s evidence that they did not return to India when his subclass 457 visa (which was granted in January 2017) expired in early 2021 because “COVID there, and situation bad”. The Applicant stated at the hearing on 8 September that the Tribunal did not consider this evidence. However, the Tribunal at [38] expressly considered the evidence. That the Tribunal did not accept the evidence does not mean the Tribunal did not consider the evidence.

43. The Tribunal at [46] found that the Applicant “gave vague evidence about an intention to work in hospitality in India”. The Applicant stated at the hearing on 8 September 2025 that her evidence to the Tribunal was not vague. An onus lies on the applicants to establish jurisdictional error in the Tribunal’s decision: see Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]. Since the applicants have not put before the Court a transcript of the Applicant’s evidence at the hearing before the Tribunal on 25 February 2022, I am not persuaded that the Tribunal’s finding that the applicant “gave vague evidence” was an error.

    COSTS

44. At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Mr Ryan sought an order that the first and second applicants (but not the third and fourth applicants who are minors) pay the first respondent’s costs in the sum of $5,400. This amount did not exceed the first respondent’s solicitor/client costs. The Applicant did not oppose this order. I consider the amount is reasonable. I will make this costs order against the first and second applicants.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:  25 September 2025

SCHEDULE OF PARTIES

SYG 596 of 2022
Applicants
Fourth Applicant:	ZARA FATIMA SYEDA