Brar v Minister for Immigration

This matter concerned an application for review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of a Student (Temporary) (Class TU) visa. The applicant, Mr. Brar, sought to challenge the MRT's decision, arguing that the Tribunal had taken into account irrelevant considerations and failed to afford him a proper opportunity to present his case.

The primary legal issues before the court were whether the MRT had erred by considering statements made by an interpreter that were not part of a translation of the applicant's evidence, and whether the MRT had acted unreasonably by refusing to grant the applicant further time to provide corroborative documents before making its decision. The applicant contended that the interpreter's unsolicited comments constituted an irrelevant consideration, or alternatively, that the interpreter was acting as a representative prohibited by the *Migration Act 1958* (Cth), or that the interpreter's conduct amounted to a denial of a hearing.

Judge Jarrett found that a critical issue for the MRT was whether the applicant could demonstrate he would benefit from previous study by way of credits towards a future bachelor's degree. The court accepted that the interpreter had made comments not by way of translation, specifically stating the applicant "didn't prepare himself," which were not attributed to anything the applicant had said. The court concluded that these comments were not a translation and were therefore an irrelevant consideration taken into account by the Tribunal. Furthermore, the court determined that the MRT's refusal to allow the applicant time to submit further documents, while indicating a decision might be made the following day, was "legally unreasonable" and constituted a failure to discharge its statutory function of review by not affording the applicant a proper opportunity to present his case.

The court ordered that the decision of the Migration Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.