KC v Minister for Immigration

This matter came before Judge Howard of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision concerning their immigration status, arguing that the Independent Expert (IE) whose opinion was relied upon had committed a jurisdictional error. The core of the dispute centred on whether the IE had correctly applied the definition of "relevant family violence" as set out in the Migration Regulations 1994.

The legal issues before the Court were whether the IE had applied the correct legal test for relevant family violence, and whether the applicant was asking the Court to undertake an impermissible merits review of the IE's factual findings. The Court was also required to consider the effect of Regulation 1.23(10)(c) of the Migration Regulations, which mandates that an IE's opinion must be taken as correct, and the circumstances in which such an opinion might be vitiated by jurisdictional error.

The Court reasoned that the IE had correctly identified and set out the definition of relevant family violence at the commencement of their opinion. The applicant's submissions were found to be an attempt to have the Court re-examine factual findings made by the IE, which would constitute an impermissible merits review. The IE's statements regarding the applicant's willingness to perform home duties and the absence of evidence of force or threat, as well as findings concerning a "friend of the sponsor" and the sponsor's father, were all characterised as factual findings, not errors in applying the legal test. The Court noted a potential typographical error in the IE's opinion regarding the direction in which the applicant turned away from the sponsor, and indicated that parties would have seven days to make further submissions on this specific point.

The Court ultimately found that the IE had applied the correct legal test and that the applicant's grounds for review amounted to a request for a merits review of factual findings. Therefore, the applicant's claim that the IE's opinion was vitiated by jurisdictional error was not made out, and the Court would proceed accordingly.