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

Mr Bari sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned whether Mr Bari had provided false or misleading information in relation to his visa application, specifically regarding his employment history at Les Crustaces Restaurant. The matter came before Lucev J in the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal (the Tribunal) had erred in finding that Mr Bari had provided false or misleading information, thereby triggering the application of Public Interest Criterion 4020(1). This involved determining whether there was sufficient evidence to support the Tribunal's conclusion that Mr Van Cauwelaert had authored an email dated 12 April 2017, and whether Mr Bari's alternative explanation for the events was sufficiently probative.

Lucev J considered the Minister's submissions, which argued that to succeed on a "no evidence" ground, Mr Bari needed to demonstrate a complete absence of evidence supporting the Tribunal's finding. The Tribunal had relied on the uncontested fact that an email address was provided directly by Mr Van Cauwelaert to a departmental officer, which supported the finding that Mr Van Cauwelaert authored the 12 April 2017 email. The Tribunal also found Mr Bari's explanation, which involved his wife responding to an email and the lack of dated records, to be unsupported by probative evidence. The Court noted that the Tribunal was entitled to draw inferences from the absence of evidence where such evidence would ordinarily be expected. The Tribunal's finding that Mr Van Cauwelaert authored the email was open to it on the evidence, and the existence of competing constructions of the evidence did not necessitate favouring a construction that found no fraud, particularly when the Tribunal had evidence suggesting Mr Bari's information was false or misleading.

The application for judicial review was dismissed.