Kaur v Minister for Immigration and Border Protection

The applicant, Ms Kaur, sought judicial review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse her visa application. The Minister was the respondent. The dispute concerned whether the delegate had properly considered the evidence and applied the relevant legal criteria in assessing Ms Kaur's de facto relationship status.

The High Court was required to determine several legal issues, including whether the delegate had acted beyond the scope of their discretion by applying criteria wider or more onerous than those specified in the regulations, whether the delegate had failed to make obvious inquiries about critical facts, and whether there had been a failure to provide procedural fairness to the applicant. Specifically, the court considered whether the delegate had erred in assessing the sharing of household expenses, in failing to seek further information regarding Centrelink declarations, and in considering travel arrangements outside the relevant assessment period. The court also examined the application of section 57 of the Migration Act 1958 (Cth) concerning the provision of relevant information to the applicant.

The applicant's argument, as presented by counsel, was that the delegate had impermissibly expanded the criteria for establishing a de facto relationship beyond what was set out in the regulations, creating an impossible burden for the applicant. For instance, the delegate allegedly required the couple to present as a de facto couple to the wider community and to engage in regular social activities, which were not explicitly mandated. Furthermore, the applicant contended that the delegate failed to make obvious inquiries about critical facts, such as the corroboration of a de facto declaration to Centrelink, and that the delegate's reasoning process lacked transparency, thereby denying procedural fairness. The applicant argued that the delegate's reliance on information concerning travel outside the 12-month assessment period, and the failure to adequately inform the applicant of the significance attributed to various pieces of evidence, constituted errors.

The court noted that grounds 1 and 2, concerning the delegate's interpretation of the criteria for de facto relationships and the assessment of household expenses, appeared to have some substance, particularly regarding the relevance of the factors considered. However, the court indicated it would focus its attention on grounds 3 to 6, which dealt with the alleged failure to make obvious inquiries, the denial of procedural fairness, and the application of section 57 of the Migration Act. The respondent's submissions on these latter grounds were to be heard.