Rizvi v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1333
•21 August 2025
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
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.
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).
The Tribunal noted at [19] and [20] of its decision, the Applicant’s visa history and that he had previously been refused a Protection visa (CB124).
The Tribunal extracted details of the Applicant’s study and employment history at [21] and [22] (CB124) as follows:
The applicant stated his study history in Australia to be as follows:
He completed a vocational course in English between April 2014 and June 2014, a Bachelor of Business course between July 2014 and April 2018, a course described as “Professional Accounting (non-award study)” between January 2019 and August 2019 and was “studying now” a Diploma in Early Childhood Education and Care which commenced in September 2020 and was due to be completed in July 2022.
The applicant stated that he was employed as a “console operator between August 2018 till now” and as an “OSHC Educator – Childcare Educator” from September 2014 “till now”. He did not disclose his income details.
The Tribunal noted that the Applicant has had stable employment in Australia since arriving, as a console worker and childcare worker. It also noted the Applicant’s intention to open a childcare business in Pakistan.
The Tribunal considered at [44] of its decision the Applicant’s circumstances in his home country including that he is unmarried, his family reside in Pakistan, and he has no assets in Pakistan (CB126). However, the Tribunal was not persuaded having regard to the time the Applicant has spent in Australia and the intended period of future stay in Australia, that there was significant incentive for the Applicant to return to Pakistan.
The Tribunal considered at [45] of its decision (CB126), the Applicant’s circumstances in Australia including the length of his stay. The Tribunal considered that the length of the proposed stay suggests that the Applicant is studying for the purposes of staying in Australia which the Tribunal considered was not consistent with being a genuine temporary entrant.
On balance, the Tribunal considered the Applicant had decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal considered at [46] of its decision (CB127) the value of the Applicant's course to his future. It found that the Applicant's evidence about his future was extremely vague and that the Applicant had not adequately explained why he had chosen to complete a course in childcare, six years after arriving in Australia and six years after having obtained stable employment in the childcare industry.
The Tribunal noted at [47] that the Applicant's current study plans were inconsistent with the qualification he obtained when he arrived in Australia, being a Bachelor of Business and his stated plans at that time (CB127).
The Tribunal concluded at [48] that it was not satisfied the proposed study would add significant value to the Applicant's career in light of his existing qualification (CB127).
The Tribunal then considered whether there were any other matters relevant to the application.
At [49], the Tribunal referred to the Applicant’s previous Protection visa application in 2014 which was refused approximately twelve months later. The Applicant returned to Pakistan in 2018 for six weeks which on its face, the Tribunal considered was completely inconsistent with the basis of applying for a Protection visa. The Tribunal considered the Applicant had not adequately explained why he was able to return and that his conduct was consistent with a person who was intent on remaining in Australia by any means, which weighed against the Applicant (CB127).
The Tribunal found at [50] of its decision (CB127) that the disparity in economic circumstances between Pakistan and Australia diminished the Applicant's incentive to return to Pakistan.
At [51], the Tribunal stated it did not consider the Applicant had demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment the course would require. Accordingly, the Tribunal was not satisfied that the Applicant had demonstrated the value of his proposed course to his future (CB127).
At [52] the Tribunal considered the length of time the Applicant had been in Australia, that he had only returned to Pakistan once since 2014, that he had no employment history or assets in Pakistan and did not appear to have strong personal ties to Pakistan. It therefore assessed the Applicant’s incentive to return to Pakistan as minimal (CB127).
The Tribunal expressed at [53] that it was not satisfied the Applicant was a genuine temporary entrant for further stay as a full-time student. Although it accepted the Applicant wished to stay and continue to study in Australia, it considered the Applicant had had that opportunity through the grant of his previous visas (CB127).
The Tribunal concluded that the Applicant commenced studying for the purposes of the visa application which was lodged three days prior to the expiry of his previous visa, in order to secure a further stay in Australia, rather than due to a genuine interest in the area of study.
The Tribunal weighed the evidence individually and cumulatively but was not satisfied the Applicant intends genuinely to stay in Australia temporarily: see [54] and [55] (CB128).
It also concluded at [56] that there was no evidence of any of the following factors in Direction No. 69: economic circumstances of the Applicant; any potential military service in Pakistan; political or civil unrest circumstances in Pakistan; remuneration the Applicant could expect to receive in Pakistan or a third country compared with Australia; circumstances in Pakistan relative to Australia or any other country; and the Applicant’s circumstances in Pakistan relative to others in that country (CB128).
It therefore found the Applicant did not meet the criteria in cl 500.212(a) and was not satisfied that the Applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212: see [57] to [59] (CB128).
Ther Tribunal therefore affirmed the decision under review.
CURRENT PROCEEDINGS
On 11 April 2022, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the decision of the Tribunal (‘the application’). The Applicant also filed an affidavit on that date annexing the Tribunal’s decision.
On 5 July 2022, procedural orders were made which included an order permitting the Applicant to file any submissions, amended application, and any additional evidence upon which he sought to rely 28 days prior to the hearing.
The Applicant did not file any further material.
On 23 April 2025, the procedural orders made on 5 July 2022, were confirmed by a Registrar and the Applicant confirmed he had retained a copy of the Court Book.
The proceedings were listed for final hearing on 13 August 2025.
MATERIAL RELIED UPON
At the hearing, the material set out below was before the Court.
The Applicant relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The application for judicial review filed on 11 April 2022; and
(c)The affidavit of Syed Yashab Hussain Rizvi filed on 11 April 2022.
The First Respondent relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The response filed on 9 June 2022;
(c)The outline of submissions filed on 25 July 2025; and
(d)The affidavit of John O’Connell filed on 25 July 2025.
The Applicant was also given the opportunity to make oral submissions in support of his application and in reply to the submissions made by the First Respondent.
An interpreter in the Urdu language was present at the hearing however, when it became apparent that the Applicant could speak and understand English well, he was given the option of addressing the Court in English with the interpreter available to assist him when needed. The Applicant chose this option, and the interpreter remained available throughout the hearing but was not needed by the Applicant.
I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.
REQUIREMENT FOR JURISDICTIONAL ERROR
The Court may set aside the Tribunal’s decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth) ss 474 and 476; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [2] as:
…breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".
GROUNDS OF REVIEW
The Applicant’s grounds of review are set out in the Application filed on 11 April 2022 (‘the application’).
Ground One
1.Jurisdictional error and lacked jurisdiction.
Ground Two
2.Error in interpretation of legislation.
Consideration
Ground One
Ground One appears to allege the Tribunal erred because it lacked jurisdiction to make a decision.
The solicitor for the First Respondent submitted that the Tribunal clearly had jurisdiction as the Applicant properly applied to the Tribunal seeking review of the Delegate's decision on 30 September 2021 and within the relevant timeframe.
By virtue of the fact that the application for review was made properly under s 347 of the Act, the Tribunal was required to review the decision pursuant to subsection 348(1) of the Act.
The Tribunal duly carried out its statutory function to review the decision of the Delegate under Division 5, Part 5 of the Act.
As the Tribunal had jurisdiction, no jurisdictional error is made out in respect of Ground One and it must fail.
Ground Two
Ground One alleges the Tribunal erred in the way it interpreted the relevant legislation. The complaint is not particularised.
At the hearing, the Applicant volunteered that he accepted there was no jurisdictional error. He made this submission after I explained to him that a jurisdictional error involved the Tribunal misapplying the law or failing to follow one of the procedures they are required to follow.
Instead of alleging a jurisdictional error on the part of the Tribunal, the Applicant submitted that the Tribunal misinterpreted the facts and reached a wrong conclusion that he was not a genuine temporary entrant.
Notwithstanding the concession made by the Applicant as to jurisdictional error, I still required the solicitor for the First Respondent to address me on whether there had been an error made, to ensure procedural fairness to the Applicant who was unrepresented.
The solicitor for the Minister submitted that the Tribunal reached a conclusion based on its assessment of the evidence put forward by the Applicant and in light of its consideration of the factors in Direction No. 69, that the Applicant did not meet the criteria in cl 500.212(a) for the granting of the visa.
It was submitted on behalf of the First Respondent that the Tribunal considered all of the matters it was required to in assessing whether the Applicant was a genuine temporary entrant.
It considered the further information the Applicant had provided in the request made by the Tribunal pursuant to s 359(2) of the Act and listed the information at [15] to [28] of its decision (CB123-124).
The Tribunal correctly identified at [7], [8] and [9] of its decision (CB122), the dispositive issue under review and the relevant criterion to be applied when assessing the issue. The Tribunal also correctly identified that it was to have regard to Direction No. 69 and that it should be used as a guide rather than a checklist when considering the Applicant’s circumstances.
The weight to be given to the relevant factors was a matter exclusively for the Tribunal: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
The fact that the Applicant had only returned to Pakistan once in 2018 for six weeks was taken into account. It was submitted on behalf of the First Respondent that this created doubt in the mind of the Tribunal that the Applicant was not a genuine temporary entrant.
The Tribunal asked the Applicant a number of questions arising from the information in the s 359(2) response (CB124-125 at [27] to [36]).
The Applicant confirmed he first arrived in Australia on 18 March 2014 as the holder of a Student visa and after a couple of months applied for a Protection visa.
The Applicant confirmed when asked that he had held other student visas including a Temporary Graduate visa. He also agreed that he applied for the visa under review only three days prior to his temporary graduate visa expiring.
When asked about his Protection visa application (CB125 at [29]), the Applicant stated that it was because of “so much genocide in Pakistan”. When asked what happened after it was refused, his response was “I did not challenge”.
The Applicant was asked by the Tribunal to explain his change in direction and level of study in Australia (CB125 at [33]). His response to the Tribunal was:
…In Pakistan child care is new market, and I came here studying business, worked in child care in Australia, at the end of the visa I decided to work in child care, want to open child care business in Pakistan.
The Applicant’s stated intention was noted at [34] of the Tribunal’s decision which was to open his own childcare centre when he returned to Pakistan.
The Tribunal found at [39] that the Applicant was often unresponsive, vague, imprecise or discursive when providing evidence (CB125).
The Tribunal noted at [44] of its decision (CB126), the Applicant had not adequately explained why he required four years to complete a Bachelor of Business and why he did not return to Pakistan after finishing his Bachelor of Business, or on the expiration of his various visas.
At [44] and [52] of its decision (CB126-127), the Tribunal outlined the Applicant’s circumstances in Pakistan, particularly that he was not married and had no employment history or assets in Pakistan and concluded he did not have significant incentive to return to Pakistan.
Further, at [50], the Tribunal found that the disparity in economic circumstances between Pakistan and Australia also diminished the Applicant’s incentive to return to Pakistan (CB127).
At [45], the Tribunal considered the Applicant’s circumstances in Australia and found that the length of the proposed stay for the course of study the Applicant had enrolled in, suggested the Applicant was studying for the purpose of staying in Australia (CB126-127).
The Tribunal gave consideration to the value of the Applicant’s course to his future and found that the Applicant had not adequately explained his change of study plans and career after completing a Bachelor of Business (CB126 at [46] and [47]). On balance, the Tribunal was not satisfied the course of study in childcare would provide significant value to the Applicant’s career beyond his existing qualifications and experience in the childcare industry since 2014.
It was submitted on behalf of the First Respondent that it was permissible pursuant to Direction No. 69 for the Tribunal to take into account other matters as identified in the questions asked of the Applicant during the Tribunal hearing.
The Tribunal considered the Applicant had not adequately explained why he returned to Pakistan after previously applying for a Protection visa, and that his conduct was not the conduct of a genuine temporary entrant, but rather the conduct of a person who was intent on remaining in Australia by any means (CB126 at [49]). In this regard, the Tribunal noted at [53] that the visa application was made only three days before the Applicant’s existing temporary graduate visa was due to expire.
In addition, the Tribunal took into account that the Applicant had previously been granted several other visas to enable him to study and achieve his study ambitions. The Tribunal ultimately formed the view that this suggested the Applicant had commenced studying in order to secure a further stay in Australia, rather than due to genuine interest in the area of study (CB127-128).
It was submitted on behalf of the First Respondent that the Applicant’s role was to satisfy the Tribunal he met the criteria for the grant of the visa and that he did not provide sufficient information for the Tribunal to be positively satisfied he was a genuine temporary entrant.
The Applicant submitted to the Court that it did not feel right that the Tribunal concluded on the evidence before it that he was not a genuine temporary entrant.
It was submitted on behalf of the First Respondent that the Tribunal’s reasoning was sound and there was no jurisdictional error in its interpretation of the legislation.
Mere disagreement with the Tribunal’s findings as expressed by the Applicant in this case, does not establish jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, at [40] per Gleeson CJ and McHugh J and Vo v Minister for Home Affairs [2019] FCAFC 108 per Derrington, Banks-Smith and Colvin JJ.
It is apparent from its decision record that the Tribunal weighed the evidence individually and cumulatively and its reasons provide a logical and evident foundation for its conclusion that the Applicant did not meet the genuine temporary entrant criterion in cl 500.212. It cannot be said that this finding was one which no logical or rational decision-maker might have arrived at on the evidence before it in accordance with the requirement in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [135]).
There is nothing in its reasons that identify the Tribunal fell into error. Accordingly, I find no jurisdictional error is made out in respect of Ground Two and it must fail.
CONCLUSION
For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.
COSTS
The First Respondent sought costs fixed in the amount of $5,600 which was below the Court’s scale.
As the application has been dismissed, it is usual that costs should follow the event.
The amount sought is reasonable and I therefore order costs in the amount of $5,600.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman. Dated: 21 August 2025
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