Aisha is 30 and studies a Diploma of Nursing in Footscray. Her husband Tariq has a protection visa application on foot and cannot safely return to Pakistan. Her own student visa was refused, and the Administrative Review Tribunal affirmed that refusal on 2 October 2026. The member accepted that she genuinely wanted the qualification. However, the member did not believe she would go home without Tariq. The reasoning was that married people share one life, so her plan to return alone was not credible. Her father’s stroke in Lahore, raised in her statement, was never mentioned. Today is day 10. She must decide by 6 November whether to file in the Federal Circuit and Family Court.
Short answer: A decision maker must test your intention on your evidence, not on what married couples usually do. In Farizal, decided on 23 September 2026, the Court quashed a Tribunal decision built on exactly that assumption. If your refusal reads the same way, the court clock runs 35 days from the decision date. Order the decision record now and check it against the three errors below.
Two tests, one rule about evidence
Farizal was decided under the old genuine temporary entrant requirement in clause 500.212(a). That test still governs student visa applications lodged before 23 March 2024. Applications lodged on or after that date face the Genuine Student requirement instead. Consequently, many files now sitting at the Tribunal still turn on the older wording. The principle in Farizal does not depend on which label applies. Under both tests, the decision maker assesses your circumstances, your immigration history and your compliance. Neither test invites a guess about your marriage.
| Test | Applies to | What is assessed |
|---|---|---|
| Genuine temporary entrant | Student visa applications lodged before 23 March 2024 | Whether you genuinely intend to stay temporarily |
| Genuine Student | Applications lodged on or after 23 March 2024 | Whether you are a genuine applicant for entry and stay as a student. A later interest in permanent residence does not count against you |
Our guide to the Genuine Student requirement covers the four questions in the current form. The student visa page sets out the other criteria and the current charges.
What the Tribunal assumed in Farizal
Farizal v Minister for Immigration and Citizenship [2026] FedCFamC2G 1824 was decided by Judge Corbett on 23 September 2026. The judgment was not public when we wrote this. Therefore, our account follows the Migration Institute of Australia’s summary in MIA Notice 19 of 25 September 2026.
The applicant was a Malaysian citizen. She arrived on a visitor visa in September 2018 and later applied for a student visa to study nursing. Her husband had a protection visa application pending and could not safely go back to Malaysia. At the Tribunal, the member accepted that she wanted to finish the degree. Even so, the member rejected her evidence that she would return to Malaysia without her husband. Because marriage involves a commitment to a shared life, the member reasoned, living apart would be inconsistent with it. On that basis the Tribunal inferred that the couple did not intend to return together. That inference became the decisive reason she failed the genuine temporary entrant criterion.
Her own evidence told a different story. She would return to her extended family in Malaysia whether or not her husband came. In addition, her mother had been diagnosed with cancer there. The Tribunal did not engage with that diagnosis at all.
Three errors, and where ordinary experience stops
The Court accepted that a decision maker may draw on ordinary human experience. However, the Tribunal had gone further. Use the three tabs to see where the line fell.
A member can bring general knowledge of how people live to the hearing. For example, a member may note that spouses usually plan to live together. That observation can prompt a question. It cannot answer the question on its own.
The Tribunal replaced the applicant’s evidence with a view about marriage in general. There was no evidence that returning alone was inconsistent with a genuine marital commitment. The Court held that this substituted an assumption for an assessment of her actual circumstances.
The mother’s cancer diagnosis was squarely before the Tribunal. It supported the stated plan to return. Because the Tribunal said nothing about it, the Court treated the silence as part of the error.
The error was also material. Another decision maker who accepted her evidence could have reached a different result. As a result, the Court allowed the application, quashed the decision and sent the matter back to the Tribunal. Costs were awarded against the Minister.
Score your own decision record
The Tribunal’s written reasons are the whole case for judicial review. Read them with a pen and tick what you find.
Three or more ticks is worth a conversation. Our refusals and review page explains how we assess a court application before you commit to it.
Reasons that stand without your partner
Farizal also tells applicants how to write. The strongest statement gives reasons to return that exist whether or not anyone comes with you. Then it proves each one.
| Reason to return | Evidence that proves it | Independent of your partner? |
|---|---|---|
| A parent who needs care | Medical reports, a statement on the care arrangements, flight history for past visits | Yes |
| Property or a family business | Title documents, business registration, bank records showing involvement | Yes |
| A job or registration pathway at home | An employer letter, the registration rules for your qualification | Yes |
| Children or extended family at home | Birth certificates, school enrolments, evidence of regular contact | Yes |
| Shared plans with your partner | Your partner’s own statement and visa position | No, so answer the obvious question yourself |
The last row matters most. If your partner holds a protection, partner or skilled application, the member will wonder about it. Say directly how your plans fit together and attach your partner’s statement. Above all, explain why your reasons survive on their own.
The 35 days after the Tribunal decides
The Federal Circuit and Family Court reviews Tribunal decisions for jurisdictional error only. You must file an originating application within 35 days of the date of the migration decision. The Court notes that this date can differ from the date on your notification letter. An extension is possible, but you must ask for it in the application itself. Our article on the 35-day clock walks through the filing steps in detail.
- Decision dateThe 35 days start here. Aisha’s decision is dated 2 October 2026, so day 35 is 6 November.
- Week 1Request the Tribunal’s full reasons and the hearing audio. Ask the Department about your bridging visa position.
- Week 2Match the reasons against the three Farizal errors. Identify every reason to return that the member did not address.
- Weeks 3 to 4Grounds drafted. The Court cannot reweigh facts, so each ground must name a legal error.
- Before day 35File. A win sends the case back to the Tribunal for a fresh decision. It does not grant the visa.
Meanwhile, the Tribunal rehearing is where the evidence finally counts. Farizal’s applicant did not receive a visa from the Court. She received a decision maker who must now deal with her mother’s illness and her own stated plan.
Frequently asked questions
My husband has a protection visa application. Will my student visa be refused because of it?
Not on that fact alone. Farizal holds that your intention must be assessed on your own evidence. Your partner’s visa position is relevant context, so address it directly. Then show reasons to return that exist regardless of what your partner does.
Does Farizal help under the Genuine Student requirement, or only the old test?
The case was decided under the genuine temporary entrant test. That test still applies to applications lodged before 23 March 2024. However, the principle is about evidence, not the label. Under the Genuine Student requirement the decision maker still assesses your circumstances. An assumption about marriage would be the same kind of error.
What does it mean that the error was material?
A court only quashes a decision for an error that could have changed the result. Here, a decision maker who accepted the applicant’s evidence could have found she met the criterion. That possibility made the error material and the decision unlawful.
Can I rely on Farizal at my Tribunal hearing before any decision is made?
Yes, and that is the better time. Put every independent reason to return in writing, with evidence, before the hearing. If the member raises your partner, answer from your own circumstances. A clear record makes a Farizal error less likely and easier to prove.
The Tribunal ignored my father’s illness. Is that enough on its own?
It can be part of a strong ground. In Farizal the Court treated the unaddressed diagnosis as part of the error, alongside the marriage assumption. Whether it is enough alone depends on how central it was to your stated intention. Get the reasons reviewed before day 35.
The Genuine Student requirement, its 23 March 2024 start date and the continued use of the genuine temporary entrant test for earlier applications verified 12 October 2026 on the Home Affairs page Genuine Student requirement. The 35-day period and extensions verified the same day on the Federal Circuit and Family Court page Migration: Overview. Farizal [2026] FedCFamC2G 1824 is described from the Migration Institute of Australia’s summary in MIA Notice 19 of 25 September 2026; the judgment was not yet public.
General information as at 12 October 2026. Aisha and Tariq are a fictional example. Not legal advice.