Aery v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1689
•17 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aery v Minister for Immigration and Citizenship [2025] FedCFamC2G 1689
File number: MLG 2368 of 2022 Judgment of: JUDGE GERRARD Date of judgment: 17 October 2025 Catchwords: MIGRATION – Partner visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to determine that the applicant did not meet cll 820.211 and 820.221 in Schedule 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5F & 476
Migration Regulations 1994 (Cth), cll 820.211 & 820.221 in Schedule 2
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration and Citizenship [2025] FCA 931
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission: 20 August 2025 Date of hearing: 4 September 2025 Place: Perth Applicant: Self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Joshua Herschderfer Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2368 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANJAY AERY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
17 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) refusing to grant the applicant a Partner (Class UK) (Subclass 820) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicant is a citizen of India (Court Book (CB) 2).
On 9 May 2016, the applicant applied for a combined Partner (Temporary) (Class UF) (Subclass 309) and Partner (Residence) (Class BS) (Subclass 100) visa. That application was refused on 7 September 2017 (CB 245).
On 18 November 2016, the applicant applied for a visitor visa in the tourist stream. That visa was granted on 29 November 2016 and the applicant arrived in Australia in December 2016 as the holder of that visitor visa (CB 245).
The sponsor is an Australian citizen (CB 9-10). The applicant and the sponsor met in India on 10 February 2016 (CB 16-17). The sponsor was visiting India after her parents had arranged a marriage with the applicant (CB 52). The applicant and sponsor committed to a shared life together on that same date (CB 16-17). They were married in a traditional Hindu ceremony on 13 February 2016 (CB 10, 16, 52).
On 22 March 2016, the sponsor returned to Australia (CB 52).
On 17 November 2017, the applicant applied for the visa which is the subject of this review on the basis of his relationship with the sponsor (CB 1-25). The applicant provided a large number of supporting documents with that visa application (CB 26-175).
On 1 August 2019, a delegate of the Minister refused to grant the applicant the visa (CB 245-274). The delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined by s 5F of the Migration Act 1958 (Cth) (the Act) and, as such, the applicant did not meet cl 820.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) (CB 249).
On 16 August 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 275-276).
On 8 December 2021, the applicant appointed a new registered migration agent to assist him with his Tribunal review (CB 296-299).
On 29 August 2022, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 27 September 2022 by video conference (CB 312-316).
On 30 August 2022, the Tribunal asked the applicant (through his representative) to provide further information to demonstrate that he was in a spousal relationship (CB 317-320).
The applicant provided further information to the Tribunal in support of his review application (CB 324-478).
On 27 September 2022, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments (CB 479-482). He was assisted at that hearing by his authorised representative and a Punjabi interpreter (CB 479).
On 3 October 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 486-490).
On 25 October 2022, the applicant lodged an application for judicial review with this Court. That application sought review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by explaining that the applicant had applied for the visa on 17 November 2017 on the basis of his relationship with the sponsor and that a delegate of the Minister had refused to grant the applicant the visa. The Tribunal noted that the delegate found the applicant did not meet cll 820.211 or 820.221 in Schedule 2 of the Regulations because, at the date of application and the date of decision, the applicant and the sponsor did not meet the definition of spouse as defined in s 5F of the Act. The Tribunal confirmed that the applicant had appeared at a hearing before it on 27 September 2022 and that he was assisted by the representative at that hearing, as well as an interpreter in the Punjabi and English languages (at [1]-[5]).
The Tribunal identified that the issue before it was whether, at the time of its decision, the applicant and the sponsor were in a spousal or de facto relationship as required by cll 820.211(2)(a) and 820.221 in Schedule 2 of the Regulations and outlined the definition of ‘spouse’ in s 5F of the Act. The Tribunal confirmed that it had before it a marriage certificate for the applicant and sponsor dated 29 February 2016 and, based on the evidence before it, the Tribunal was satisfied that the applicant and sponsor were validly married to each other (at [7]-[10]).
The Tribunal then summarised the applicant’s documentary and oral evidence, as follows (at [11]):
(a)The applicant and sponsor entered an arranged marriage after meeting for the first time on 10 February 2016.
(b)The sponsor had previously been married and had a child from that previous marriage.
(c)The sponsor and her child returned to Australia following the wedding ceremony and the applicant joined them following the grant of his visitor visa in December 2016.
(d)The applicant and sponsor were initially doing well in their relationship but issues arose when the sponsor’s ex-husband “started interfering” and their relationship deteriorated.
(e)In about August 2019, the applicant visited his brother in Melbourne but the sponsor declined to travel with him. After the applicant had left, the sponsor reconciled with her ex-husband and sought to serve the applicant with divorce papers.
(f)The applicant and the sponsor had not seen each other since he travelled to Melbourne in 2019, and the sponsor and her child were living with her former husband.
(g)The applicant had not agreed to the divorce and did not obtain any court orders in relation to the sponsor’s child.
(h)There was no family or domestic violence, however the applicant felt betrayed by the sponsor’s behaviour. He believes he is the victim in this situation and that he has “done all the right things”.
The Tribunal indicated that it had before it a report from a consultant psychiatrist confirming that the applicant had said he was experiencing stress from the breakdown of his relationship. The Tribunal found that the applicant and sponsor had not had any contact since August 2019 and that, on the evidence before it, their relationship ended sometime in 2019. The Tribunal found that, as at the date of its decision, the applicant and sponsor had separated and were not in a continuing relationship. As such, the Tribunal found that the applicant had not satisfied the criteria in cl 820.211(1)(a) of the Regulations. The Tribunal noted that there were limited exceptions where the visa might still be granted, and confirmed that those exemptions were discussed with the applicant at the Tribunal hearing. The Tribunal noted that the applicant made no claims with regard to any of the exemptions (at [12]-[15]).
The Tribunal was sympathetic to the applicant’s circumstances, however, as the relationship had ceased in August 2019, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa and ultimately affirmed the delegate’s decision to refuse to grant the applicant the visa (at [16]-[17]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 25 October 2022 contained two grounds of review as follows (without alteration):
1.The decision of the tribunal is affected by jurisdiction error because the tribunal failed to take in to account a relevant consideration.
2.The tribunal failed to determine that the appellant does not meet the requirements of clause 820.211 and 820.221 in schedule 2 of the Migration Regulations.
The applicant filed an affidavit with that judicial review application, annexing extracts from the delegate’s decision and a copy of the Tribunal’s decision. That affidavit also outlined some of the procedural history of this matter and stated that the Tribunal had no reason to believe that the applicant did not meet the criteria for the visa and had made a jurisdictional error in deciding the applicant’s case. The contents of the applicant’s affidavit (to the extent that it points to any issue of jurisdictional error on the part of the Tribunal) will be addressed by the Court below, together with the applicant’s grounds of review.
The applicant appeared before the Court on 4 September 2025 (by video link) without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 25 October 2022 (the affidavit being taken as read and in evidence at the hearing on 4 September 2025), a Court Book numbering 494 pages (marked as Exhibit 1 at the hearing), and written submissions filed on behalf of the Minister on 20 August 2025.
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal’s decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
Against this background, the applicant made submissions to the Court about the circumstances which led to the breakdown of his marriage. Those submissions, however, do not point to any error on the part of the Tribunal or any issue that this Court can assist with.
CONSIDERATION
As outlined above, the application for judicial review contained two grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
Grounds one and two
Ground one simply claimed that the Tribunal failed to take into account a relevant consideration. The applicant did not specify which relevant consideration he believed the Tribunal failed to consider. However, the applicant’s affidavit did include some additional information which may provide some clarification in that regard. The applicant’s affidavit relevantly stated as follows (without alteration):
[…]
6.All the necessary documents and information was provided to the tribunal member in support of my application.
7.The relationship was genuine and ongoing and we both supported each other financially and emotionally.
8.As it is normal in everyday relationship that little disagreements do exist and the same happended between us.
9.Sometimes the situations go beyong the point where we regret later that is should not have happened.
10.We both tried to convince the authorities that our relationship was genuine..
11.The tribunal had no reason to believe that I do not meet the criterion.
[…]
By ground two, the applicant claimed that the Tribunal failed to find that the applicant satisfied cll 820.211 and 820.221in Schedule 2 of the Regulations.
The Minister submitted that neither ground had merit and that the evidence before the Tribunal (including evidence from the applicant at the hearing) was that the applicant and sponsor had not seen each other since August 2019 and that the sponsor had reconciled with her ex-husband. The Minister submitted it was on that basis that the Tribunal found that the applicant and sponsor were no longer in a continuing relationship for the purpose of cl 820.221 in Schedule 2 of the Regulations. Further, the Tribunal considered whether any of the alternate criteria applied to the applicant’s circumstances and found that none of the exemptions applied to the applicant. The Minister also submitted that those findings were open to the Tribunal on the information before it.
The Court agrees for the reasons that follow.
Clause 820.211 in Schedule 2 of the Regulations relevantly provided as follows (emphasis added):
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
…
As can be seen from the legislative extracts above, the applicant needed to be the spouse or de facto partner of an Australian citizen in order to satisfy cl 820.211 in Schedule 2 of the Regulations. In this matter, the Tribunal found that the applicant and sponsor were married and that the marriage was valid for the purposes of the Act (as required by s 5F(2)(a)) (at [10]). Whilst the Tribunal did not expressly make reference to the applicant having satisfied cl 820.211 in Schedule 2 of the Regulations, it is implicit that the Tribunal found that the applicant had in fact satisfied that criteria.
This is further evidenced by the Tribunal going on to consider whether the applicant satisfied the ‘other requirements’ for a spousal relationship, including cl 820.221 in Schedule 2 of the Regulations (which was required to be satisfied at the time of decision).
At the time of the Tribunal’s decision, cl 820.221 in Schedule 2 of the Regulations relevantly provided as follows:
820.221
(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a)would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b)satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c)has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A)the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
Here, the Tribunal found that, based on the evidence before it from the applicant and from his consultant psychiatrist, the Tribunal found that the applicant and sponsor had separated and were not in a continuing relationship. On that basis, the Tribunal determined that the applicant did not meet cl 820.221(1)(a) in Schedule 2 of the Regulations (at [12]-[14]).
The Tribunal then also went on to consider whether any of the exemptions (as provided for by cl 820.221(2)-(3) in Schedule 2 of the Regulations applied. In this regard, the Tribunal stated as follows (at [15]):
These exemptions were discussed at hearing. The applicant made no claims with regards to the legislative exceptions which refer to the death of the sponsor, claims that there is a child in respect of whom the applicant and sponsor have parental rights and obligations, or claims of family violence against the applicant. The applicant confirmed this in his evidence at hearing and the tribunal is satisfied that there are no exceptions to the requirement of a continuing relationship which have application in this matter.
In the circumstances, the Tribunal ultimately concluded that the applicant did not meet cl 820.221(1) in Schedule 2 of the Regulations and therefore did not satisfy the criteria for the grant of the visa (at [16]). As a result, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (at [17]).
To the extent that the applicant suggested, by ground one and by the information included in his affidavit, that the Tribunal failed to consider the evidence provided in support of his application and the genuineness of the applicant’s relationship with the sponsor or that the Tribunal had “no reason to believe” that the applicant did not meet the visa criterion, the Court disagrees for the reasons that follow.
As outlined above, the Tribunal set out the evidence before it in detail, including documents provided by the applicant and oral evidence given by the applicant at the Tribunal hearing. Of particular relevance was the following evidence (at [11]):
According to evidence before the tribunal which included documents provided by the applicant and also based on the oral evidence of the applicant:
…
h)In about August 2019 the situation had become increasingly difficult. He suggested that he, the sponsor and her child go to visit the applicant’s brother who resides in Melbourne. The sponsor declined to travel with him, so he travelled to Melbourne on his own.
i)After he left, the sponsor and her ex-husband reconciled. The sponsor sought to serve the applicant with an application for divorce however he has not formally been served with any documents and does not know if a divorce application has been dealt with in his absence. He has not agreed to a divorce.
j)He and the sponsor have not seen each other or had any contact since he travelled to Melbourne in 2019. He returned to Perth about seven months ago. He believes that the sponsor and her child are now living with her former husband.
k) He has not obtained any family court orders pertaining to the sponsor’s child.
l)This was not a situation of family or domestic violence. He however feels very upset about the situation and feels greatly betrayed by the behaviour of the sponsor and her ex-husband. He is the victim in this situation and has done all the right things.
The Tribunal also detailed a medical report before it as follows (at [12]):
The applicant provided the Tribunal a report prepared by a consultant psychiatrist [name omitted] who assessed the applicant in August 2021. This report confirms that the applicant stated he was experiencing stress from the breakdown his relationship reporting that the sponsor had separated from him and that he believed she had reconciled with her ex-husband.
The Tribunal’s findings were based on the evidence above (being both documentary and oral evidence provided by the applicant). The Court is satisfied that the Tribunal properly considered the evidence before it and that the Tribunal’s findings (being that the applicant and sponsor were no longer in a continuing relationship for the purpose of cl 820.221(1)(a) in Schedule 2 of the Regulations, and that none of the exemptions applied to the applicant’s circumstances for the purpose of cl 820.221(1)(b) in Schedule 2 of the Regulations) were open to it based on the material before it.
No jurisdictional error arises in relation to grounds one or two.
CONCLUSION
The application for review has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application for judicial review is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 17 October 2025
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