Background
Manpreet Singh Somal, an Indian citizen, arrived in Australia in 2009 on a student visa held as the dependent of his first wife. That visa was cancelled in September 2010 after they separated. In May 2014, he applied for a subclass 820 partner visa based on his marriage to Australian citizen Talia Antram. A ministerial delegate refused the application in January 2016.
After an initial Administrative Appeals Tribunal decision was set aside by consent for denial of procedural fairness, a differently constituted AAT again affirmed the refusal in December 2018. Because Somal applied more than 28 days after his last substantive visa ceased, he did not satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth). The AAT found no compelling reasons to dispense with that criterion, considering among other matters his separation from Antram, the absence of children of their relationship, and the lack of supporting evidence for his claims of depression and poor migration advice.
The Federal Circuit and Family Court of Australia (Division 2) dismissed Somal’s judicial-review application in March 2025. It held that the AAT had considered his claims, had made findings open on the evidence, and that his remaining complaint impermissibly sought merits review. Somal appealed to the Federal Court without legal representation.
The Court’s Holding
Justice Kennett dismissed the appeal because its grounds did not identify any error by the primary judge. The allegation that the primary judge had failed to consider Somal’s application was contradicted by her reasons, which demonstrated genuine engagement with his review grounds and oral submissions.
The Court also rejected Somal’s contention that the AAT had disregarded the genuineness of his marriage. The AAT had accepted at face value that the spousal relationship existed when the visa application was made, while also considering evidence that the couple had later separated and had not seen each other for two years. His complaints about the marriage breakdown and the visa refusal challenged the merits rather than exposing legal error.
To the extent Somal sought to challenge the delegate’s original decision, those complaints had not been raised below and were outside the Federal Court’s jurisdiction under s 476(2)(a) of the Migration Act 1958 (Cth). The appeal was dismissed, and Somal was ordered to pay the Minister’s costs as agreed or assessed.
Key Takeaways
- An appeal from judicial review must identify error by the primary judge; disagreement with the visa outcome or the AAT’s factual assessment is insufficient.
- Accepting that a marriage was genuine did not establish compelling reasons to waive Schedule 3 criterion 3001, particularly where the evidence showed a later separation and other asserted circumstances lacked support.
- The Federal Court could not entertain complaints directed at the delegate’s original visa decision where those complaints were not raised below and fell outside its statutory jurisdiction.
Why It Matters
The decision underscores the distinction between judicial review and merits review in Australian migration litigation. Courts examine whether a tribunal committed legal or jurisdictional error; they do not reconsider whether the visa should have been granted on the facts.
It also illustrates the evidentiary importance of substantiating claimed compelling reasons for dispensing with Schedule 3 requirements. A genuine relationship, without more, does not necessarily excuse a substantially late onshore partner-visa application.