Gajjar v Minister for Immigration and Citizenship

In Gajjar v Minister for Immigration and Citizenship, Justice Kiefel dismissed the application for writs of certiorari and mandamus against the Minister in relation to the rejection of his bridging visa application. The plaintiff had taken an International English Language Testing System (IELTS) test to attain proof of his competency in English, as required by the visa criteria. He had failed to attain that score on his first test, but did on a second test. At the time of making the decision, the Minister’s delegate was unaware of this second score, because the plaintiff’s migration agent had not lodged the results (as per the plaintiff’s request). The plaintiff contended that the delegate erred in failing to give proper particulars about ‘relevant information’ (as required by s 57 of the Migration Act 1958 (Cth)) in the failed application, in this case, the first test results. In rejecting the plaintiff’s arguments, Justice Kiefel reasoned that what was important in the operation of the section was that the information comes from the applicant, which grounds the assumption that the applicant understands the use to which that information will be put, and makes it unnecessary for the decision-maker to draw the applicant’s attention to that purpose. Justice Kiefel held that the plaintiff understood the relevance and importance of the first results for his application when he informed the delegate of them, and the first results thus were not ‘relevant information’ for the purposes of giving particulars for the failure of the application. Her Honour noted that this was a rare example of a case where a visa applicant knows that the information provided will not ensure the application will be successful, but is obliged to put evidence forward so that the application can proceed (at [20]).

High Court Judgment [2013] HCA 13 1 March 2013
Result Application dismissed
High Court Documents None
Leave Hearing [2013] HCATrans 39 1 March 2013
[2012] HCATrans 275  1 November 2012
Application for an
order to show cause
[2012] HCATrans 231  21 September 2012