Federal Court of Australia

Somal v Minister for Immigration and Citizenship [2026] FCA 1122

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The appellant, who is a citizen of India, arrived in Australia in June 2009 as the holder of a Student (Class TU) visa. That visa was granted to him as a dependent of his first wife, who was a student. It was cancelled in September 2010 after they separated. During 2011 the appellant lodged three applications for a protection visa, each of which was found to be invalid.

2    On 29 May 2014, the appellant applied for a Partner (Temporary) (Class UK) visa in subclass 820 (the partner visa). He claimed to be in a spousal relationship with an Australian citizen, Ms Talia Antram, and the material that he submitted with his application included a certificate of his marriage to Ms Antram. A delegate of the first respondent (the Minister) refused to grant the visa on 14 January 2016. The appellant applied for review of the delegate’s decision in the (then) Administrative Appeals Tribunal (the AAT).

3    On 30 August 2016, the AAT affirmed the decision of the delegate. However, on 4 October 2017 that decision was set aside on judicial review by the (then) Federal Circuit Court of Australia (the FCCA). That order was made by consent on the basis that the AAT had denied the appellant procedural fairness by failing to disclose the existence of a certificate issued under s 375A of the Migration Act 1958 (Cth) (the Act).

4    On 13 December 2018, after a further hearing, the AAT (differently constituted) again affirmed the decision of the delegate (the second AAT decision). The basis for the decision was that, having applied for the partner visa more than 28 days after the expiry of his last substantive visa, the appellant did not satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations) and, there being no “compelling reasons” for not applying those criteria, he therefore could not meet the criterion for grant of the visa in cl 820.211(2)(d) of Schedule 2 to the Regulations.

5    The appellant commenced proceedings, seeking to have the second AAT decision set aside, by filing an application to show cause in the FCCA on 19 December 2018. The proceeding languished in that Court’s central migration docket for some time and it was not until 6 March 2024 (by which time the FCCA had become the Federal Circuit and Family Court of Australia (Division 2) (the FCFCA)) that it came before the primary judge for orders to be made preparing it for hearing. Her Honour heard the matter on 7 June 2024 and delivered judgment, dismissing the application, on 17 March 2025. The appellant appeals from that judgment.

The second AAT decision

6    Relevantly to the circumstances of the appellant’s case cl 820.211(2) in Schedule 2 to the Regulations provided, at the relevant time, as follows.

(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

(c)    the applicant is sponsored:

(i)    if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; …

(d)    in the case of an applicant who is not the holder of a substantive visa—either:

…; or

(ii)    the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

(Original numbering.)

7    Criterion 3001 was relevantly as follows.

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

…

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)    entered Australia unlawfully on or after 1 September 1994;

Whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully; or

…

8    As noted earlier, the AAT was satisfied that the appellant did not satisfy criterion 3001 because his last substantive visa had ceased to have effect in September 2010 and he did not lodge his application for the partner visa until 29 May 2014. This does not appear to have been in dispute. The AAT was therefore required to consider whether there were “compelling reasons” for not applying criterion 3001. It found that there were not. Its reasoning, briefly, was as follows.

(a)    The AAT took into account that the appellant was no longer in a relationship with Ms Antram and had not seen her since December 2016, but he claimed to be hopeful that they would get back together and her sponsorship of him had not been withdrawn.

(b)    The AAT accepted at face value the claim that the appellant and Ms Antram were in a spousal relationship at the time of the visa application.

(c)    The appellant claimed to have been depressed following his separation from his first wife. However, there was no evidence before the AAT to support this claim and the AAT therefore did not regard it as a compelling reason to waive the Schedule 3 criteria.

(d)    The appellant had not made any claims as to the longevity of his relationship with Ms Antram and the evidence was that it had lasted for less than three years (and the parties had not seen each other for two years). The AAT therefore did not accept that the parties would suffer hardship from not seeing each other or that the length of the relationship was a compelling reason not to apply the Schedule 3 criteria.

(e)    There were no children of the relationship. Ms Antram had a child from a previous relationship, but no evidence had been put before the AAT about the appellant’s role in relation to the child (except for oral evidence that he had not seen the child for two years).

(f)    The appellant also claimed to have received poor migration advice in the past, which had resulted in him being an unlawful non-citizen for a time. However, that claim was not supported by any evidence; and the AAT was also mindful of the responsibility that visa holders have for their own migration status and the visa applications they submit.

9    There being (in the AAT’s view) no compelling reason not to apply criterion 3001, the appellant did not meet the criteria for grant of the partner visa.

The judgment below

10    The appellant was unrepresented in the FCFCA. He filed an amended application on 14 March 2019 which advanced the following grounds.

1    APPLICANT CLAIM THAT THE ADMINSTRATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM THE APPLICANT TO CONSIDER HIS ARGUMENTS.

2    APPLICANT ALSO CLAIM HE RECEIVED POOR MIGRATION ADVICE.BUT AAT DONT LISTEN TO HIM.

3    APPLICANT IS IN TREMENDOUS DEPERSSION AND HE CANNOT COPE UP WITH DAY TO DAY LIFE .HE SAID DURING HIS INTERVIEW.

4    APPLICANT WAS IN GENUNIE REALATIONSHIP BUT DUE TO ONGOING PROBLEM THEIR RELATIONSHIP WAS BROKE.

5    APPLICANT AND HIS PATENER BOTH STAYED TOGATHER.

6    APPLICANT SATISFY ALL CRITERION BUT AAT DISREGARDS ALL CLAIM.

7    AAT IGNORES HIS MEDICAL CONDITION

(Original spelling and grammar; numbering corrected from original.)

11    The primary judge found no substance in these grounds. In short:

(a)    as to grounds 1 to 5 and 7, her Honour found that the AAT had considered the appellant’s claims and the findings it made were open to it; and

(b)    her Honour concluded that ground 6 did no more than express disagreement with the AAT’s decision and impermissibly invited the Court to engage in merits review.

The appeal

12    The grounds set out in the notice of appeal, filed on 24 March 2025, are as follows.

1.    AAT FAIL TO GIVE ME JUSTICE WHEN MY MARRAIGE IS GENUINE AND IMMIGRATION DEPARTEMNET DID NOT GRANT ME VISA.

2.    MY MARRIAGE IS CONTINOUS BUT DUE TO MY VISA REJECTION MY PATNER DECIDE TO DIVORCE ME.DEPARTEMENT IS RESPONSIBEL FOR MY DIVORCE.

3.    I GOT INJUSTICE FROM AAT AND IMMIGRATION DEPARTEMENT BOTH MADE LEGAL ERROR WHEN MARRAIGE IS CONTINOUS AND GENUINE THEN WHY THEY RFUSED MY VISA.

4.    I APPEAL TO HON.COURT TO GRANT ME JUSTICE BECAAUSE I URGE TO HON.JUDGE GIVEN, BUT THEY DID NOT CONSIDER MY APPEAL.

(Original spelling and grammar.)

13    The appellant remains unrepresented. In these circumstances, timetabling orders made by a registrar provided for the Minister to file an outline of submissions no later than 20 business days before the hearing and for the appellant to file submissions no later than 10 days before the hearing. An outline of submissions for the Minister was filed on 22 June 2026. The appellant did not file submissions.

14    With the exception of ground 4, the grounds of appeal do not attempt to identify any error on the part of the primary judge.

15    Ground 4, which alleges that the primary judge “did not consider” the appellant’s application, is obviously without merit. Her Honour’s reasons demonstrate a genuine engagement with the appellant’s grounds of review and his oral submissions, such as they were.

16    Ground 1 echoes ground 4 in the FCFCA and appears to contend that the AAT erred by not treating the appellant’s marriage as genuine. On its face it seeks to attack the merits of the decision rather than pointing to any legal error. Additionally, it does not reflect what happened in the AAT. As noted earlier, the AAT expressly proceeded on the footing that the appellant’s marriage to Ms Antram was as he claimed it to be. It also took into account the appellant’s evidence that, at the time of the hearing, they had separated and had not seen each other for two years.

17    Grounds 2 and 3 also do not point to any error on the part of the AAT. Ground 2 is internally contradictory: the appellant’s marriage to Ms Antram cannot be “continuing” if they are “divorced”. At the time of the AAT hearing the appellant’s evidence was that he and Ms Antram were no longer together. There is nothing in the record to indicate that he made a submission to the AAT that their separation (or “divorce” if that is what occurred) had resulted from the refusal of the partner visa. In any event, the state of their relationship was an issue for consideration by the AAT in the context of deciding whether it was satisfied that compelling reasons existed for not applying criterion 3001, and there is nothing to suggest that her Honour was wrong in concluding that the AAT’s findings were open to it on the material.

18    To the extent that grounds 2 and 3 complain about the decision of the delegate, they were not raised in the FCFCA and would not have been within this Court’s jurisdiction (s 476(2)(a) of the Act). Those complaints cannot be raised in this appeal.

Conclusion

19    The appeal must therefore be dismissed. The Minister has sought the costs of the appeal and there is no reason why costs should not follow the event.

Associate:

Dated:    11 August 2026