Aggarwal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, Mr Aggarwal, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Partner (Temporary) (Class UK) visa. The Minister's delegate had refused the visa on the basis that the applicant did not meet the criteria for a genuine and continuing relationship, as required by cl 820.221(1) of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant contended that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the Federal Court was whether the delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing the genuineness of the applicant's relationship with his partner. Specifically, the applicant argued that the delegate had placed undue weight on the fact that the couple had not yet lived together for a continuous period of 12 months, despite other evidence supporting the relationship's authenticity. The court was required to determine if this assessment constituted a failure to exercise the power conferred by the regulations according to law.

Street J found that the delegate's reasoning, which focused heavily on the absence of cohabitation for the full 12-month period, demonstrated a misunderstanding of the criteria for a genuine and continuing relationship. His Honour held that while cohabitation is a significant factor, it is not the sole determinant of a genuine relationship. The delegate was required to consider all the evidence presented, including the applicant's submissions and documentary evidence, to form a holistic view of the relationship's nature and durability. By unduly emphasising the lack of 12 months' cohabitation, the delegate failed to give proper consideration to other relevant aspects of the relationship, thereby committing jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.