Virk v Minister for Immigration and Citizenship [2025] FedCFamC2G 1891

1. The below reasons were delivered orally at the conclusion of the hearing on 4 November 2025. This written version has been prepared with the assistance of the Court recording.
2. Ms Virk, the applicant in these proceedings, made a combined application for Partner (Subclass 820 and 801) visas on 27 November 2015. She was sponsored in that application by a man she claimed to be her husband. Evidence came to light that caused a delegate of the minister to doubt the genuineness of the relationship. There were also questions over whether the applicant had provided bogus documents. The delegate concluded the applicant was unable to satisfy the requirement in cl 820.211(2)(a) in sch 2 to the Migration Regulations 1994 (Cth) that she was the spouse or de facto partner of an Australian permanent resident or citizen at the time of the application. In reaching that decision, the delegate carried out a careful analysis of aspects of the claimed relationship against the matters set out in ss 5F and 5CB of the Migration Act 1958 (Cth).
3. The applicant sought review of the delegate's decision in the Administrative Appeals Tribunal. The Tribunal ultimately decided the delegate's decision should be affirmed on 27 November 2020. It is the Tribunal's decision that we are here to discuss today.
4. That decision is reproduced in the court book. It is relatively lengthy and includes a careful discussion of the evidence going to the question the Tribunal had to decide. The Tribunal's ultimate findings are set out at [86]-[93] of its reasons:

86. The Tribunal has considered all the circumstances of this relationship. The Tribunal finds that there was no genuine commitment at the time of application and it considers that the supporting evidence has been contrived. Taking into account all the evidence before it, the Tribunal considers that the financial aspects of the relationship, the nature of the household, the social aspects and the claimed commitment have been contrived by the applicant and sponsor to support the applicant being granted a spouse visa so that she could stay in Australia. The Tribunal considers that at the time of application, there was no planning for the future as a couple and there was a lack of mutual commitment to this relationship

87. Overall, the Tribunal is not satisfied that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others nor that their relationship was genuine and continuing at the time of application.

88. The Tribunal has not accepted the applicant's assertions that:

• She did not and does not have a relationship with Mr Singh;

• She is divorced from Mr Singh;

• She and her sponsor genuinely entered into a relationship and marriage as claimed;

• She lodged her application for a partner visa based on a genuine relationship with the sponsor.

89. The Tribunal does not accept that the applicant was in either a genuine spousal or de facto relationship with the sponsor at the time of application in November 2015.

90. The Tribunal finds that at the time of application, the parties did not have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and they did not live together as a couple.

91. On the basis of the above, the Tribunal is not satisfied that the requirements of either s.5F or s.5CB(2) are met at the time the visa application was made. It is not necessary for the Tribunal to thus consider whether there was a valid marriage between the applicant and the sponsor; nor does the Tribunal need to consider the other factors relevant to the determination of a de facto relationship.

92. As the requirements of either s.5F or s.5CB(2) are not met, the applicant does not meet cl.820.211(2)(a).

93. There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.

1. At the commencement of the hearing, I explained to the applicant that the Court was focused on whether the Tribunal's decision was affected by jurisdictional error. The Tribunal's decision is affected by jurisdictional error when it does something (or fails to do something it is required to do) that causes the decision-making process to fail. I referred to common examples of jurisdictional error, including a failure to engage with relevant submissions or evidence, and unreasonableness. I explained that legal unreasonableness might occur where the decision-maker's decision or decision-making process is illogical or irrational, or where the decision is so outside the accepted range of possibilities that one can say no decision-maker acting reasonably would have reached that conclusion or made that decision.
2. The application for judicial review identifies a single ground of review. Ms Virk said the application was prepared by her migration agent who was paid to do that work. The ground of review contends the Tribunal acted unreasonably when it failed to grant an adjournment of the Tribunal hearing to the applicant on medical grounds when she requested it.
3. It is necessary to go into some little detail about what happened during the Tribunal's hearing process.
4. Ms Virk was first invited to attend a hearing with her migration agent on 17 September 2020. That hearing was scheduled for 22 October 2020. The applicant dismissed her agent and on 20 October 2020 - two days before the scheduled hearing - she requested an adjournment of the hearing. She referred to severe back pain and claimed she was bedridden. She included a medical certificate signed by her general practitioner which is reproduced at p 260 of the court book. The certificate simply asserts the applicant was receiving medical treatment for an unspecified condition and asserted she would be unfit to continue her usual occupation. There was also an imaging request attached which referred to lower back pain. The Tribunal refused the request, explaining in its letter in reply that there was insufficient evidence to justify granting the adjournment. The hearing went ahead. The applicant did not appear on that occasion. The Tribunal elected to adjourn at that point so the applicant might have another opportunity to attend. Following the hearing originally scheduled on 22 October 2020, the Tribunal wrote again to the applicant to explain that she was being given another chance to appear but warned any further request for an adjournment would need to be supported with proper medical evidence - preferably by making the general practitioner available to give evidence on oath to explain why the applicant could not proceed with a hearing in person or remotely. The hearing was rescheduled for 29 October 2020. On 27 October 2020, the applicant wrote to request a further adjournment, referring to lower abdominal pain. She enclosed a fresh certificate from the general practitioner that included little more information than the last one, together with a copy of an imaging request that had been directed to a radiologist. That correspondence is reproduced at pp 274ff of the court book.
5. The Tribunal refused the request but offered to proceed with the hearing by telephone. The letter to that effect is reproduced at pp 279ff of the court book and it is dated 28 October 2020.
6. The applicant did not appear at the hearing on 29 October 2020, which is to say she did not answer the phone.
7. The Tribunal wrote again to the applicant on 30 October 2020. That was a letter for the purposes of s 359A of the Act which raised various matters for her comment. The applicant duly provided a comment on 13 November 2020 but the Tribunal was not persuaded.
8. The Tribunal explained its reasons for not granting the adjournment and proceeding to make a decision without further reference to her in its statement of reasons at [32]-[36]. In particular, at [34], the Tribunal noted:

Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), she was aware of the hearing date and was informed that her application for postponement was not granted. Two separate SMS reminders were also sent to the applicant about the hearing, on 21 and 28 October 2020. Her only reason for requesting an adjournment was her medical unfitness to attend (and feeling like conceiving), however the Tribunal was not satisfied she was unable to attend a telephone hearing, and she was advised of this. No other reason for adjourning was given.

1. I note the Tribunal adds at [35] of its reasons that after sending the s 359A letter on 30 October 2020, the applicant responded but did not make a further request to attend a hearing before the Tribunal.
2. There is nothing legally unreasonable in the decision of the Tribunal to proceed to a decision. The applicant was properly invited to attend a hearing. Her first request for an adjournment was said to be inadequate - and it plainly was - yet the Tribunal agreed to allow that adjournment. It gave proper warning about what was required if any further adjournment was sought. The applicant did not comply with that requirement. The Tribunal still gave her an opportunity to comment. Its decision to refuse the adjournment for the reasons given was, in the circumstances, plainly open to it. This ground of review must fail.
3. Ms Virk referred to two other matters in the affidavit which accompanied her application for judicial review. She said the Tribunal failed to consider all the relevant evidence before it. She was unable when asked to explain what, if anything, the Tribunal had missed. She referred to some matters before me that she would like to have raised (or would like to raise now) but she agreed she had not mentioned those things to the Tribunal in the course of the review process. Perhaps they might have come up at the hearing if she had attended, but she did not, and she did not mention them in the response to the s 359A letter inviting comment. It follows there is nothing of substance to this complaint.
4. The third complaint refers to the Tribunal failing to provide the applicant with an opportunity to furnish further evidence. The fact is the applicant was provided with an opportunity to attend a hearing - two hearings, in fact - and she did not attend. She was also invited to provide further submissions. She responded but did not indicate there was anything else she wished to add. This complaint is not made out.
5. I am not satisfied the Tribunal's decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
6. The minister made an application for costs after I delivered my reasons for decision. Mr Pattinson, who appeared for the minister, sought costs in the fixed amount of $6,100. He noted the amount sought is lower than the amount indicated in the Court's scale for matters which conclude at a final hearing. He said it reflects the amount of work done on the file and is less than the costs actually incurred by the minister.
7. I explained to the applicant that in litigation in Australia, an award of costs may be made against an unsuccessful party, although costs orders were not inevitable. I asked the applicant if she had anything to say about an award of costs. She did not make any submissions.
8. I am satisfied it is appropriate in the circumstances to make an award of costs in favour of the minister in the fixed amount of $6,100, having regard to the Court's scale and the amount of work done on the file.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe delivered on 4 November 2025.