Rizvi v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1333

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rizvi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1333

File number(s): CAG 8 of 2022
Judgment of: JUDGE LEISHMAN
Date of judgment: 21 August 2025
Catchwords:  MIGRATION LAW – Application for judicial review –Student (subclass 500) visa refused – Genuine temporary entrant criteria not met – No jurisdictional error established – Application dismissed with costs
Legislation:

Migration Act 1958 (Cth) ss 347, 348, 359(2), 474, 476, 499

Migration Regulations 1994 (Cth) Sch 2, cl 500.212

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Vo v Minister for Home Affairs [2019] FCAFC 108

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Division: Division 2 General Federal Law
Number of paragraphs: 99
Date of hearing: 13 August 2025
Place: Canberra
Solicitor for the Applicant: Self-represented litigant, in-person
Solicitor for the First Respondent: Mr O’Connell of HWL Ebsworth Lawyers
Solicitor for the Second Respondent: Submitting appearance

ORDERS

CAG 8 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SYED YASHAB HUSSAIN RIZVI

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LEISHMAN

DATE OF ORDER:

21 AUGUST 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to Minister for Immigration and Citizenship.

2.The name of the Second Respondent be amended to Administrative Review Tribunal.

3.The application for judicial review filed on 11 April 2022 is dismissed.

4.The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.

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 LEISHMAN

INTRODUCTION

  1. On 11 April 2022, the Applicant filed an Application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (‘the Act’) seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, made on 16 March 2022.

    PROCEDURAL BACKGROUND

  2. The Applicant is a 29-year-old citizen of Pakistan, having been born on 13 September 1995.

  3. The Applicant first arrived in Australia on 18 March 2014. He held a TU 573 Higher Education visa between March 2014 and August 2017, a Student (Class TU) (subclass 500) visa from October 2017 until July 2020 and a Temporary Graduate (Subclass 485) visa until 24 August 2020.

  4. On 21 August 2020, the…

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AGLC
Rizvi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1333
Case
[2025] FedCFamC2G 1333
Decision Date

CaseChat Overview and Summary

Rizvi v Minister for Immigration and Multicultural Affairs is a case in which the applicant, a citizen of Pakistan, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming a decision by the Minister for Immigration and Multicultural Affairs to refuse to grant him a Student (subclass 500) visa. The applicant's application for review was brought pursuant to s 476 of the Migration Act 1958 (Cth). The primary legal issue for the court to determine was whether the Tribunal had made a jurisdictional error in affirming the Minister's decision not to grant the visa. The court had to consider whether the Tribunal had correctly applied the relevant law, in particular the genuine temporary entrant criteria in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth). The court considered the evidence presented by the applicant and the Tribunal's reasons for affirming the decision not to grant the visa. The court found that the Tribunal had not made a jurisdictional error in affirming the decision not to grant the visa. The court held that the Tribunal had correctly applied the relevant law and had considered all relevant factors in determining whether the applicant satisfied the genuine temporary entrant criteria. The court found that the applicant had not demonstrated that he was a genuine temporary entrant for entry and stay in Australia as a student. The court dismissed the applicant's application for judicial review with costs.

The court ordered that the applicant pay the Minister's costs of the application for judicial review. The costs were assessed as agreed between the parties or, failing agreement, by the court.

Orders

Orders of the court

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Background

Background to the litigation

On 11 April 2022, the Applicant filed an Application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (‘the Act’) seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, made on 16 March 2022.PROCEDURAL BACKGROUND The Applicant is a 29-year-old citizen of Pakistan, having been born on 13 September 1995. The Applicant first arrived in Australia on 18 March 2014. He held a TU 573 Higher Education visa between March 2014 and August 2017, a Student (Class TU) (subclass 500) visa from October 2017 until July 2020 and a Temporary Graduate (Subclass 485) visa until 24 August 2020. On 21 August 2020, the Applicant applied for the visa, which is the subject of this judicial review, being a Student (Class TU) (subclass 500) visa (‘the visa’). The Applicant's proposed course of study was a Diploma of Early Childhood Education and Care at Queensford College. On 28 September 2021, a delegate of the Minister (‘the Delegate’) notified the Applicant of its decision to not grant the visa on the basis that the Delegate was not satisfied that the Applicant met the genuine temporary entrant criterion for the visa in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). On 30 September 2021, the Applicant applied to the Tribunal for review of the Delegate's decision. On 2 December 2021, the Tribunal wrote to the Applicant pursuant to subsection 359(2) of the Act and invited him to provide information that demonstrated that he was enrolled in a registered course of study, and that he was a genuine applicant for entry and stay as a student. On 14 December 2021, the Applicant's representative provided the Tribunal with a completed Request for Student Visa Information Form. On 15 December 2021, the Applicant's representative wrote to the Tribunal and informed it that there were errors contained in a previous Request for Student Visa Information Form. Attached to the covering email was an amended Request for Student Visa Information Form (‘359 Form’). On page 7 of the 359 Form, the Applicant recorded that he was currently studying a Diploma in Early Childhood Education and Care which was due to conclude in July 2022. On 2 February 2022, the Tribunal invited the Applicant to attend a hearing (by telephone) scheduled for 18 February 2022. On 18 February 2022, the Applicant, with assistance from his representative and an Urdu interpreter, appeared before the Tribunal (by telephone) to give oral evidence and present arguments. On 16 March 2022, the Tribunal affirmed the decision under review. On 18 March 2022, the Tribunal notified the Applicant (by email to his representative) of its decision.THE TRIBUNAL’S DECISION The Tribunal’s decision is at pages 121 to 134 of the Court Book (‘CB’). The Tribunal identified at [7] and [8] of its decision (CB122) that the issue on review was whether the Applicant met the requirements of cl 500.212 of Schedule 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 March 2022, the Tribunal notified the Applicant (by email to his representative) of its decision.THE TRIBUNAL’S DECISION The Tribunal’s decision is at pages 121 to 134 of the Court Book (‘CB’). The Tribunal identified at [7] and [8] of its decision (CB122) that the issue on review was whether the Applicant met the requirements of cl 500.212 of Schedule 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student. Clause 500.212 is as follows: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. The Tribunal correctly stated at [9] (CB123) that in considering whether the Applicant satisfies the genuine temporary entrant criterion in cl 500.212, it is to have regard to Direction Number 69 under s 499 of the Act (‘Direction No. 69’). Direction No. 69 applies to delegates of the Minister and members of the Tribunal who review decisions in relation to a Student visa or Student Guardian visa application. Thus, the Tribunal was required to consider a number of factors including the Applicant’s circumstances in their home country, circumstances in Australia, the value of the course to the Applicant’s future, the Applicant’s immigration history, and any other relevant matter. These factors are not a checklist but rather a guide to decision-makers in considering the Applicant’s circumstances as a whole and reaching a finding as to whether the Applicant satisfies the genuine temporary entrant criterion. The Tribunal heard evidence from the Applicant at the hearing as noted at [11] to [13] of its decision. It also took into account information contained within a Request for Student Visa Information form completed by the Applicant. The Tribunal summarised the Applicant’s evidence at [11] to [38] of its decision (CB123-125). It noted at [31] that the visa had been applied for only three days before the Applicant’s temporary graduate visa was due to expire. The Tribunal accepted at [14] of its decision that the Applicant was enrolled in a Diploma of Early Childhood Education and Care which was due to commence on 14 September 2020 and be completed on 31 July 2022 (CB123). The Tribunal noted at [17] that the Applicant had been in Australia since March 2014 and had returned to Pakistan on one occasion in November 2018 (CB123).

Ratio Decidendi

Legal Principle Established

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