Bijender v Minister for Home Affairs

Bijender (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa. The applicant was also required to satisfy Criterion 3001 of Schedule 3 to the *Migration Regulations 1994* (Cth). The AAT had concluded that the applicant and his sponsor were not in a spousal relationship, and therefore did not proceed to consider the waiver of Criterion 3001. The application for judicial review was heard by Dowdy J in the Federal Court of Australia.

The primary legal issue before the court was whether the AAT had committed a jurisdictional error in its decision-making process. Specifically, the court was required to determine if the AAT's finding that the applicant and his sponsor were not in a spousal relationship was a valid determination, and if so, whether this precluded the AAT from considering the waiver of Criterion 3001. The applicant also contended that jurisdictional error had otherwise been established.

Dowdy J reasoned that the grounds of the applicant's application for judicial review failed to establish jurisdictional error. The AAT's finding that the applicant and his sponsor were not in a spousal relationship was a factual finding within the AAT's jurisdiction. As the AAT was not satisfied of the existence of a spousal relationship, it was not required to consider the waiver of Criterion 3001. No other basis for jurisdictional error was established.

Consequently, the application for judicial review was dismissed.