Seemab v Minister for Immigration, Citizenship and Multicultural Affairs - Partner Visa Appeal Dismissed

Original Word Document (78.6 KB) Federal Court of Australia

Seemab v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 402

| Appeal from: | Seemab v Minister for Immigration and Border Protection [2022] FedCFamC2G 1026 |

| File number: | NSD 1056 of 2022 |

| Judgment of: | WIGNEY J |

| Date of judgment: | 27 March 2026 |

| Catchwords: | MIGRATION – application for Partner visa – refused by delegate of Minister for Immigration and Border Protection under s 65 Migration Act 1994 (Cth) finding appellant did not meet criterion of cl 820.211 of sch 2 to Migration Regulations 1994 (Cth) – refusal decision affirmed by Administrative Appeals Tribunal – application for judicial review in Federal Circuit Court dismissed – whether appellant demonstrated any appealable error of Circuit Court primary judge – appeal dismissed |

| Legislation: | Migration Act 1958 (Cth) ss 5F, 65, 417, 359AA

Migration Regulations 1994 (Cth) reg 1.15A; cl 820.211, cl 820.221 |

| Cases cited: | Seemab v Minister for Immigration and Border Protection [2022] FedCFamC2G 1026 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 41 |

| Date of hearing: | 27 March 2026 |

| Counsel for the Appellant: | The appellant appeared in person with the assistance of an interpreter |

| Solicitor for the Respondents: | Ms R Adler, Australian Government Solicitor |

ORDERS

| NSD 1056 of 2022 |

| BETWEEN: | ARSLA SEEMAB

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | WIGNEY J |
| DATE OF ORDER: | 27 MARCH 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(D elivered ex tempore, revised from transcript)

WIGNEY J:

1 The appellant, Ms Arsla Seemab, appeals to this Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). The Circuit Court dismissed Ms Seemab’s application for judicial review of a decision of the then Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Border Protection, to refuse to grant Ms Seemab a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth).

2 For the reasons that follow, Ms Seemab has not demonstrated any appealable error on the part of the primary judge in the Circuit Court and her appeal must be dismissed with costs.

Migration and procedural history

3 Mr Seemab is a citizen of Pakistan. She has a relatively long history of engagement with the Minister (and his or her delegates and department) and the Tribunal in an effort to retain or secure a visa that would permit her to continue to reside in Australia.

4 Mr Seemab first arrived in Australia as the holder of a Student (TU-572) visa on 18 March 2011. About 18 months later, she unsuccessfully applied for a Protection (XA-866) visa. Her application to the then Refugee Review Tribunal for a review of that decision failed, as did her subsequent attempt to have the Minister substitute a more favourable decision pursuant to s 417 of the Act.

5 Ms Seemab lodged an application for a Partner visa on 22 January 2015. That application was based on her marriage and spousal relationship with an Australian citizen who had sponsored her application.

6 A delegate of the Minister refused to grant a Partner visa to Ms Seemab because she did not meet one of the criteria for the grant of that visa in cl 820.211(2) of sch 2 to the Migration Regulations 1994 (Cth). The delegate did not consider whether Ms Seemab met the other criteria in that clause. More will be said about those criteria later in these reasons.

7 Ms Seemab applied to the Tribunal for a review of the delegate’s decision. That review application was successful. On 8 June 2016, the Tribunal decided to remit Ms Seemab’s visa application with a direction that she met the criterion that the delegate had decided she had not met. It remained necessary for Ms Seemab’s application to be assessed against the other criteria for the grant of a Partner visa.

8 Before a decision was made in respect of Ms Seemab’s application following the remittal, Ms Seemab’s sponsor notified the Minister’s department that his relationship with Ms Seemab had ceased and that he wished to withdraw his sponsorship. The department corresponded with Ms Seemab about that development and invited her to provide certain documentation if she wished to proceed with her application. Ms Seemab elected to proceed with her application and claimed that she had been or was a victim of family violence. The significance of that claim will be explained later.

9 On 4 November 2016, Ms Seemab was advised that a delegate of the Minister had decided not to grant her a Partner visa. The delegate was not satisfied that Ms Seemab was a spouse of her sponsor at the time of her visa application, which in the circumstances was a key criterion that Ms Seemab was required to meet to be granted a Partner visa.

10 Ms Seemab applied to the Tribunal for a review of the delegate’s decision. On 9 November 2017, the Tribunal affirmed the delegate’s decision. As discussed later, like the delegate, the Tribunal was not satisfied that Ms Seemab was her sponsor’s spouse at the time she lodged her visa application.

11 Ms Seemab filed an application in the Circuit Court seeking judicial review of the Tribunal’s decision. Ms Seemab’s grounds of review and the primary judge’s consideration of them are discussed later.

Relevant criteria for the grant of a Partner Visa

12 The key criteria for the grant of a Partner visa that were relevant to Ms Seemab’s application were at the time prescribed in cl 820.211 of sch 2 of the Regulations. Those criteria included that, at the time of the visa application, the applicant was the spouse of, relevantly, an Australian citizen: cl 820.211(2)(a)(i). Section 5F of the Act provided, in essence, that a person is a spouse of another person if the two persons are in a “married relationship”, and that persons are in a married relationship if: they are married to each other under a marriage that is valid for the purposes of the Act; they have a mutual commitment to a shared life as a husband and wife to the exclusion of others; the relationship between them is genuine and continuing; and they live together or do not live separately and apart on a permanent basis.

13 Regulation 1.15A of the Regulations provided, in effect, then when determining whether persons are in a married relationship as defined in s 5F of the Act, the Minister was required to consider “all of the circumstances of the relationship” including: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the persons’ commitment to each other.

14 The key criteria for the grant of a Partner visa that were required to be satisfied at the time of the decision were prescribed in cl 820.211 of sch 2 to the Regulations. Relevantly, in the case of an applicant who had met the requirement in cl 820.211(2), the applicant was required to continue to meet that requirement or meet the requirement in, relevantly, cl 820.221(3). The requirements of cl 820.221(3) were met if, relevantly, the applicant would have continued to meet the requirement in cl 820.211(2) except that the relationship had ceased and the applicant had “suffered family violence committed by the sponsoring partner”.

The Tribunal’s decision

15 The Tribunal convened a hearing at which Ms Seemab gave evidence, as did the sponsor’s mother. The Tribunal’s Statement of Decision and Reasons (R) gives a detailed summary of Ms Seemab’s evidence (R [16]-[28]) and a brief summary of the evidence given by the sponsor’s mother: R [29]-[30].

16 The Tribunal assessed that the key issue in determining Ms Seemab’s application was whether at the time of her visa application she was a spouse of the sponsor and therefore satisfied the criterion in cl 820.211(2)(a)(i) of sch 2 of the Regulations. If Ms Seemab did not meet that criterion, her claim that, while her relationship with the sponsor had since ceased, she had suffered family violence committed by the sponsor, was irrelevant. That is because cl 820.221(3) is effectively premised on the fact that the applicant had been the spouse of the sponsor at the time of the visa application: see R [35]-[27] cf cl 820.221(3)(a). In short, it was only necessary to consider whether an applicant satisfied cl 820.221, including by reason of meeting cl 820.221(3), if the applicant had already passed through the cl 820.211(2) gateway.

17 The Tribunal found that the applicant had not passed through the cl 820.211(2) gateway because it was not satisfied that the applicant had ever been the sponsor’s spouse. While the Tribunal was satisfied that Ms Seemab and the sponsor had been validly married (R [39] cf s 5F(2)(a) of the Act), the Tribunal was not satisfied that Ms Seemab met the definition of spouse in s 5F(2)(b) to (d) of the Act: R [58]. She therefore did not satisfy the criterion in cl 820.211(2)(a) of sch 2 to the Regulations. Specifically, the Tribunal was not satisfied that Ms Seemab and the sponsor ever had a mutual commitment to a shared life as husband and wife to the exclusion of others, or that the relationship between them was genuine and continuing at any time, or that they ever lived together: R [58] cf s 5F(2)(b), (c) and (d) of the Act.

18 In arriving at those findings, the Tribunal gave detailed consideration to Ms Seemab’s claims and evidence and specifically addressed the matters identified in reg 1.15A(3) of the Regulations, including the financial aspects of the relationship (R [40]-[42]), the nature of the household (R [43]-[46]), the social aspects of the relationship (R [47]-[51]) and the nature of Ms Seemab’s and the sponsor’s commitment to each other: R [52]-[57]. It is unnecessary for present purposes to detail the Tribunal’s findings in respect of those matters. The Tribunal reasoned that, as it had found that Ms Seemab and the sponsor were never in a spousal relationship, it was unnecessary to consider her claims concerning domestic violence: R [60].

The judgment of the primary judge

19 Ms Seemab was not legally represented in the proceedings in the Circuit Court. It is trite to observe that to succeed in her judicial review challenge to the Tribunal’s decision, it was necessary for Ms Seemab to identify and demonstrate jurisdictional error on the part of the Tribunal. She failed to do so. The primary judge concluded that none of the arguments that Ms Seemab had ventilated in her application (as amended) or in her submissions “demonstrated any basis on which the Tribunal’s decision ought to be set aside for jurisdictional error” and that “jurisdictional error on the part of the Tribunal had not been demonstrated”: Seemab v Minister for Immigration and Border Protection [2022] FedCFamC2G 1026 (J) at [30]-[31].

20 The primary judge fairly and accurately described the grounds of review set out in Ms Seemab’s amended application as being “prolix, unclear and, in some cases, misconceived”: J [27]. His Honour set out the grounds in full (at J [26]) and analysed them in some detail: J [28]. It is unnecessary to again set out the grounds of review. The primary judge’s analysis of the grounds and their merit may be summarised as follows.

21 Several of the grounds, or parts thereof, essentially just challenged findings of fact made by the Tribunal without alleging any error that affected the “lawfulness” of those findings: see J [28(a)]. I would read his Honour’s reference to “lawfulness” in that context as meaning that Ms Seemab did not, for example, allege that the factual findings were unsupported by any evidence, or were illogical or otherwise not open on the evidence. His Honour concluded that those grounds did not disclose any basis on which the Tribunal’s findings might be set aside.

22 Some of the grounds included allegations of bias on the part of the Tribunal. The primary judge noted that those allegations had not been properly pleaded or particularised: J [28(b)].

23 Some of the grounds alleged that the Tribunal had failed to have regard to particular evidence: His Honour concluded that those assertions were wrong: J [28(c)].

24 His Honour noted that some of the grounds addressed issues that were not in issue in the Tribunal’s review: J [28(d)]. Those were grounds that referred to evidence concerning Ms Seemab’s psychological condition, which was an issue that was addressed in the earlier Tribunal decision, but was not in issue the before Tribunal that made the decision which was the subject of the judicial review application.

25 Two grounds alleged that the Tribunal had denied Ms Seemab procedural fairness because it had not put adverse information to her for comment. The primary judge found, however, that the Tribunal had put those matters to Ms Seemab pursuant to s 359AA of the Act and therefore had discharged “any relevant duty of that sort”: J [28(e)].

26 Two grounds appeared to involve a claim that the Tribunal had failed to have regard to certain evidence which was said to be relevant to an assessment of the genuineness of the relationship. The primary judge reasoned, however, that the relevance of that evidence was unclear given the Tribunal’s finding that Ms Seemab and the sponsor never had a mutual commitment to a shared life as husband and wife to the exclusion of all others or a relationship that was genuine and continuing: J [28(f)].

27 Two grounds of review, on the primary judge’s assessment, agitated mattes that were irrelevant to the Tribunal’s decision (J [28(g)] and two grounds simply adverted to “factual allegations of a background nature”: J 28].

28 The primary judge also adverted to oral submissions made by Ms Seemab at the hearing of her application. His Honour characterised those submissions as submissions which “focussed on the merits of the decision” and noted that he had made it clear to Ms Seemab that “the Court is not empowered to reconsider the merits of the visa application”: J [29].

Grounds of appeal and submissions

29 Regrettably, though perhaps understandably given that Ms Seemab was not legally represented, the grounds of appeal are unsatisfactory and, in some instances, difficult to comprehend. Doing my best, they may be summarised as follows.

30 Two grounds (grounds 1 and 4) simply asserted that the primary judge did not consider Ms Seemab’s arguments and circumstances. Those grounds did not identify any particular arguments or circumstances that the primary judge was required to, but did not, consider.

31 Two grounds (grounds 2 and 3) claimed that the primary judge erred in not considering Ms Seemab’s claims concerning domestic violence.

32 Three grounds (grounds 5, 6 and 7) assert error on the basis of what purport to be extracts from the Tribunal’s decision, but which appear to be extracts from a Tribunal decision in an entirely different matter.

33 Ms Seemab did not file any written submissions. She did, however, appear at the hearing and addressed the Court orally. Her oral address did not refer to any of her grounds of appeal or include any arguments or submissions concerning error on the part of either the Tribunal or the primary judge. She referred to the nature of her relationship with her former sponsor, though what she said in that regard at best concerned the merits of the Tribunal’s decision. Otherwise, her address concerned her personal circumstances, including why she wanted to stay in Australia and not have to return to Pakistan.

No appealable error established

34 Ms Seemab has not established that the primary judge made any appealable error in dismissing her application.

35 There is no basis for the broad and generalised assertion that the primary judge failed to consider Ms Seemab’s arguments or circumstances. As has already been noted, the ground itself does not provide any particulars of the arguments or circumstances that Ms Seemab claimed had been ignored by the primary judge. Ms Seemab’s oral submissions at the hearing did not assist in that regard. It is in any event clear that the primary judge gave careful consideration to all Ms Seemab’s lengthy and discursive review grounds and her oral submissions at the hearing.

36 As for Ms Seemab’s grounds of appeal concerning her claims in respect of domestic violence, there is no indication that Ms Seemab’s grounds of review and submissions in the Circuit Court included any argument concerning the approach taken by the Tribunal in respect of her domestic violence claims. Ms Seemab accordingly requires leave to raise any such arguments for the first time on appeal. It is unnecessary to determine the question of leave because it is in any event readily apparent that the arguments have no merit.

37 As was noted earlier, in its reasons the Tribunal referred to Ms Seemab’s claims concerning domestic violence, but found that it was unnecessary to assess those claims because she did not in any event satisfy the criteria for the grant of a Partner visa. The Tribunal was correct to so conclude. The Tribunal’s finding that Ms Seemab and the sponsor had not at any time been in a spousal relationship meant that she did not satisfy the criterion in cl 820.211(2)(a). It also followed that she could not meet the criterion in cl 820.221(3)(a), which is effectively premised on the fact that the visa applicant had met the criteria in cl 820.211(2). There was therefore no need for the Tribunal to assess whether Ms Seemab’s claims concerning domestic violence supported a finding that she met the criterion in cl 820.221(3)(b).

38 Ms Seemab’s grounds of appeal based on extracts from some other Tribunal decision self-evidently have no merit.

39 As adverted to earlier, Ms Seemab’s oral address did not address her grounds of appeal and did not articulate any arguments concerning error on the part of the primary judge or the Tribunal. While I have some considerable sympathy for Ms Seemab’s personal circumstances, unfortunately nothing that she said in her oral address advanced her appeal in any respect.

40 I should finally note that, given that Ms Seemab was not legally represented at either the Tribunal stage or the Circuit Court stage, I have carefully considered both the Tribunal’s decision and the reasons for judgment of the primary judge. I am unable to discern any error on the part of the Tribunal which could be said to constitute a jurisdictional error. It is also clear that the primary judge carefully considered the Tribunal’s decisions and Ms Seemab’s arguments in support of her review grounds. I am unable to discern any appealable error by the primary judge. There was, as I have said, no discernible basis for the primary judge to find any jurisdictional error on the part of the Tribunal.

Conclusion and disposition

41 Ms Seemab’s grounds of appeal have no merit. The primary judge did not err in its consideration of Ms Seemab’s judicial review application and did not err in dismissing that application. It follows that Ms Seemab’s appeal must be dismissed. There is no basis for concluding otherwise than that costs should follow the event. It follows that Ms Seemab should pay the Minister’s costs of the appeal as agreed or assessed.

| I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:

Dated: 22 April 2026