Aryal v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 692

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Aryal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 692   

File number(s):

SYG 716 of 2021

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

16 May 2025

Catchwords:

MIGRATION – judicial review – partner visa – applicant alleged Tribunal was in error because it looked at whether the applicant was a member of the family unit of the primary person as at the time of the Tribunal’s decision whereas it should have considered that question as at the time of the application for the visa – no jurisdictional error disclosed as Tribunal needed to be satisfied of the relevant criteria at the time of the Tribunal decision on the material then before the Tribunal – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5F, 476 and 477

Migration Regulations 1994 (Cth) reg 1.12(2)(a), cl 500.311

Cases cited:

BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Hamod v New South Wales [2011] NSWCA 375

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445

Division:

General Federal Law

Number of paragraphs:

21

Date of hearing:

8 May 2025

Place:

Sydney

Applicant:

In person

Solicitor for the First Respondent:

Mr A Sharma of HWL Ebsworth

ORDERS

SYG 716 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SANJAY ARYAL

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	16 MAY 2025

THE COURT ORDERS THAT:

1.The Application dated 27 April 2021 is amended to seek a writ of mandamus.

2.The Application is 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 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 KAUR-BAINS

1. The applicant, a citizen of Nepal, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 7 April 2021. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.

2. The applicant was included in an application for a Student Visa lodged on 15 March 2019, as a member of the family unit of a person who holds a student visa. At the time of the application, the applicant was in a marital relationship with the primary visa applicant, Ms Bishnu Aryal (Bishnu). However, by the time the matter was determined by the Tribunal on 7 April 2021, the applicant accepted he and Bishnu had separated in April 2019 and the couple had not reunited since that time and lived separately. Further, the applicant told the Tribunal he and Bishnu were engaged in divorce proceedings in the court system in Nepal.

3. The issue before the Court is whether the Tribunal was correct in determining whether the relevant criteria for the grant of the visa needed to be satisfied at the time of the Tribunal decision. For the reasons set out below, I find the applicant has not demonstrated jurisdictional error.

   TRIBUNAL’S DECISION

4. On 7 April 2021, the applicant and two witnesses appeared before the Tribunal by way of an audio hearing to make submissions and give evidence (Court Book (CB) 120).

5. The Tribunal identified the issue before it at [7] and [8] of the reasons as follows:

   7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the primary person and the secondary person are in a genuine and continuing relationship.

   8. The issue in this case is whether the applicant meets cl.500.311 of Schedule 2 to the Migration Regulations which relevantly states:

   …

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

   (i) the primary person’s application under subregulation 2.07AF(3); or

   (ii) information provided in relation to the primary person’s application under subregulation 2.07AF(4);

   (b) the applicant became a member of the family unit of the primary person: after the grant of the student visa to the primary person;

   (ii) and before the application was made.

6. At [18] of the Tribunal’s reasons it noted the applicant’s evidence as follows:

   The applicant gave evidence to the Tribunal that he came to Australia in 2014, completed a Master degree in Accounting in 2016, got married in Nepal in November 2016, returned to Australia with his wife, he stopped studying in 2016 and had not been engaged in any study since that time, the marriage experience[d] difficulties, the couple separated in April 2019, the couple had not re-united since that time and had live[d] separately and were currently going through divorce proceedings in the court system in Nepal.

7. At [19] of its reasons, the Tribunal noted the evidence of the two witnesses called by the applicant, who confirmed they were aware the applicant and Bishnu had separated and were going through divorce proceedings in Nepal.

8. Given the evidence of the applicant and the two witnesses called by the applicant, the Tribunal found the applicant and Bishnu, the primary person, had separated in April 2019 and they were currently going through divorce proceedings in Nepal. Accordingly, the Tribunal found the applicant was not a member of the family unit of the primary person and therefore did not satisfy cl 500.311 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

   PROCEEDINGS BEFORE THE COURT

9. The applicant appeared at the hearing before me as a litigant in person.  Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant filed on 27 April 2021 and the Minister’s written submissions filed on 29 April 2025.

   CONSIDERATION

10. The application raises the following grounds for judicial review (as per original):

    1.Cl. 500.311 doesn’t apply

    2.Relationship didn’t end at the time of application

11. At the hearing before me, the applicant submits that cl 500.311 of Schedule 2 of the Regulations does not apply and the applicant and Bishnu were in fact in a relationship at the time the visa application was made on 15 March 2019. Therefore, the applicant argues that he satisfied the criteria of the visa at the time the visa application was made, in being a member of the family unit with Bishnu, and the Tribunal was wrong in finding that he did not. The applicant’s argument cannot be accepted for the reasons that follow.

12. First, the Tribunal correctly identified the issue it needed to consider as set out at [5] of this Judgment, being that it needed to be satisfied the applicant was a member of the family unit of Bishnu (the primary person), who holds a student visa as required by cl 500.311 of the Regulations. A member of the family unit is relevantly defined by reg 1.12(2)(a) of the Regulations to include a person who is a spouse or de facto partner of the primary person. Relevantly, 'spouse' is defined by s 5F of the Act. This required that: the visa applicants be married to each other under a marriage valid for the purposes of the Act; that they have a mutual commitment to a shared life as a married couple; the relationship between them was genuine and continuing; and that they live together or do not live separately and apart on a permanent basis.

13. Second, the Tribunal correctly noted the evidence, which the applicant does not dispute, that at the time the Tribunal was determining the matter, the applicant and Bishnu were separated in April 2019, had not reconciled and were going through divorce proceedings in Nepal.

14. Third, the law is clear that the relevant criteria for the grant of student visas must be satisfied at the time of the Tribunal’s decision on the material then before it, given the Tribunal is engaged in a merits review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [35], [37] and [38], applying Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419. Therefore, I find there is no error in the Tribunal’s finding that the applicant was not a member of the family unit of Bishnu, the primary person.

15. No jurisdictional error is disclosed by grounds 1 and 2.

16. The applicant also seeks final orders as follows (as per original):

    1.AAT Neglected medical condition

    2.Pshychological condition were overlooked

    3.Visa to be given as [sentence not completed]

17. The applicant did not expand on these matters before me and in any event, I find these matters not relevant to the issue the Tribunal needed to consider.

18. The applicant did raise at the hearing before me his history in Australia and the history of his marriage. These matters do not go to any grounds for judicial review and as I said to the applicant as sympathetic as I may be to his situation, my power is limited to assessing whether there is any jurisdictional error in the Tribunal’s reasons, and I find there is not.

    Self-evident jurisdictional error

19. Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.

    CONCLUSION

20. As no jurisdictional error has been disclosed, the application must be dismissed.

    COSTS

21. I will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       16 May 2025