AUW19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1239
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1239
File number(s): MLG 549 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 6 August 2025 Catchwords: MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – apprehended bias – whether the Tribunal failed to deal with a claim or integer of the claim –no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36(2)(a), 36(2)(aa), 476, 476(2)(a) Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Craig v State of South Australia (1995) 184 CLR 163
CNY17 v Minister for Immigration & Border Protection (2019) CLR 76; [2019] HCA 50
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000]
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
MZZZW v Minister for Immigration and Board Protection (2015) 234 FCR 154
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 8
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 8 July 2025 Place: Melbourne – Video (Microsoft Teams) Counsel for the Applicants: Julie Zhou Solicitor for the Applicants: Victoria Legal Aid Counsel for the First Respondent: Johua Lessing Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 549 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUW19
First Applicant
AUX19
Second Applicant
AUY19 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate). The Delegate refuse to grant the First Applicant (Applicant) a Protection (subclass 866) visa (Protection Visa). Because the visa applications of the other Applicants in this proceeding were dependant on the Applicant’s visa application their applications were also refused.
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was:
(a)allocated to the Court as presently constituted on 28 May 2025
(b)listed for hearing on 28 May 2025, and
(c)heard on video – Microsoft Teams on 8 July 2025.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the Court Book and submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate refusing the Applicant a protection visa.
The Application for a Visa
The Primary Applicant is a citizen of India[1] who arrived in Australia on 12 December 2007 as the holder of a Temporary Work (Skilled) (subclass 457) visa.[2] The visa was valid until 5 October 2011.[3] Since the expiry of the subclass 457 visa the Primary Applicant has held a series of bridging visas.[4]
[1] Court Book (CB) 14.
[2] CB 15.
[3] Ibid.
[4] CB 82.
On 22 April 2014, the Primary Applicant lodged an application for a protection visa (Protection Visa Application).[5]
[5] CB 1-26, 39.
On 9 May 2014, the Primary Applicant’s family members were added to the application.[6] The family members included the Applicant’s wife and three children.[7] The Primary Applicant’s wife and two oldest daughters arrived in Australia on 7 September 2010[8], and the youngest daughter was born in Australia on 5 December 2011.[9]
[6] CB 47-74.
[7] CB 81-82.
[8] CB 49, 56, 6.
[9] CB 71.
At the time of the family’s application the family unit included:
(1)Primary Applicant - AUW19 (father),
(2)Second Applicant - AUX19 (mother) (referred to in the Tribunal as the third applicant) (C2/T3 Applicant),
(3)Third Applicant - AUY19 (oldest child, above 18) (referred to the by the Tribunal as the fifth applicant) (C3/T5 Applicant),
(4)Fourth Applicant - AUZ19 (middle child, above 18) (referred to by the Tribunal as the second applicant) (C4/T2 Applicant), and
(5)Fifth Applicant - AVA19 (youngest child) (referred to by the Tribunal as the fourth applicant) (C5/T4 Applicant).
On 9 December 2021 the C5/T4 Applicant became an Australian citizen. Consequently, she no longer needs a visa to remain in Australia. On 8 July 2025, the Court gave the C5/T4 Applicant leave to discontinue her application before the Court with no order as to costs against her.
The other members in the Primary Applicant’s family unit did not make specific claims.
On 9 December 2014, the Delegate invited the Primary Applicant to a phone interview scheduled on 8 January 2015, to discuss the protection visa application.[10]
[10] CB 75-76.
The Primary Applicant’s protection claims derived from the protection visa application and the phone interview with the Delegate on 8 January 2015 are summarised as follows:
(a)The Primary Applicant is a follower of the Dera Sacha Sauda (DSS) sect[11]
(b)Since 2007 DSS followers have clashed violently with Sikhs opposed to their sect, the source of violence being that the DSS have copied the Sikhs in certain religious practices[12]
(c)On 12 August 2007 the Primary Applicant was severely beaten by Sikh followers and received threats.[13] The Primary Applicant was in hiding from August until December 2007, while his family were at home.[14]
(d)The Primary Applicant received a visa and came to Australia in December 2007.
(e)On 8 July 2009 the Primary Applicant departed Australia and travelled to India to visit family.[15] The Primary Applicant’s brother told the Primary Applicant it was safe to return to India if he stayed at home.[16] During the visit he encountered a group of Sikh militants who were planning to kill a DSS official. They threatened him and he reported the incident to police.
(f)On 24 August 2009 four or five Sikhs attacked the Primary Applicant, the Primary Applicant was shot by one of attackers in the side of the body.[17] The Primary Applicant has the bullet inside his body.[18] The incident was reported to police who did not investigate.
(g)The Primary Applicant received further threats from the Sikhs and, fearful for his life, returned to Australia on 5 October 2019.[19]
(h)Since the Primary Applicant’s return, he has received warnings that the Sikh groups are “after [his] life” and that he would be killed if he returns to India.[20]
(i)The Authorities in India would not be able to protect the Primary Applicant due to their Sikh influence.[21]
(j)The Primary Applicant’s enemies would not allow him to relocate in India safely.[22]
[11] CB 17.
[12] CB 17-18, 84.
[13] CB 17.
[14] CB 85.
[15] CB 16, 84.
[16] CB 85.
[17] CB 18, 84.
[18] CB 22.
[19] CB 18.
[20] CB 18, 21.
[21] CB 21.
[22] CB 85.
Decision by the Delegate
On 15 January 2015, the Delegate refused to grant the Primary Applicant a protection visa.[23] Because the second, third, fourth and fifth Applicants’ (Secondary Applicants) claims were entirely dependent on the Primary Applicant, their visas were also refused.[24] The Delegate’s reasons for doing so, were as follows:[25]
(a)The Primary Applicant fabricated a series of claims as a means of supporting his visa application.
(b)The Delegate doubted the credibility of the Primary Applicant’s fear of harm given he returned to India in 2009, when he was told it was only safe to stay at home and after being in hiding for four months in 2007.
(c)It was highly improbable that after only leaving his home once during a three month visit to India in 2009 that he was stopped by Sikh militants who openly discussed, in front of him, their plan to kill a local DSS leader.
(d)It was unlikely the police would parade the alleged Sikh attackers in front of him for identification however would not investigate the 2009 assault/shooting on him.
(e)The Applicant claimed to be in fear for his life but during his first seven years in Australia did not apply for protection, instead relying on a business sponsorship to stay in Australia. This was considered incompatible with the Applicants genuine fear for his life, given said sponsorship “had all but failed to provide security for him”.
(f)The Applicant had already applied for an Australian visa and arranged sponsorship when the claimed attack occurred in August 2007.
(g)The claimed harmed feared was for a refugee convention reason of religion[26] and amounted to persecution given the systematic and discriminatory conduct, however the fear was not “well founded”.
(h)Based on the information provided by the Primary Applicant and country information available, the Delegate was not satisfied that the Primary Applicant had suffered significant harm in the past or would suffer significant harm in the reasonably foreseeable future on return to India.
[23] CB 77 – 94.
[24] CB 94.
[25] CB 86– 91.
[26] s 5J, Migration Act.
The Delegate was therefore not satisfied that the Primary Applicant had a real chance of being persecuted for a refugee convention reason under s 36(2)(a), nor that there was a real risk of significant harm for the purposes of complementary protection under s 36(2)(aa). The application for a visa was accordingly refused.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
First Tribunal Decision
The Primary Applicant sought review of the decision by the Tribunal. On 12 July 2016, the Tribunal, as constituted by Member Eteuati, affirmed the decision under review.[27]
[27] CB 96 –113.
The Primary Applicant made an application for judicial review of the Tribunal’s decision in the then Federal Circuit Court of Australia. On 16 October 2017, the Court ordered by consent that the decision of the Tribunal dated 12 July 2016 be quashed.[28]
[28] CB 114 – 115.
On 21 December 2017, further orders were made to vary the orders made on 16 October 2017. Importantly, Paragraph A was amended to state:[29]
The First Respondent conceded that the decision of the Second Respondent dated 12 July 2016 (AAT case number 1501315) is affected by jurisdictional error because the Second Respondent failed to consider the Applicant's claim, or all integers of his claim, that he would face serious harm or significant harm in India from Sikhs or Sikh radicals on account of his membership or key membership of the DSS.
[29] Affidavit of Kristina Petrovski filed 4 July 2025.
On 11 June 2018 the orders were amended to further direct the Tribunal to determine according to law the application for review of the delegate decision dated 15 January 2015.[30]
[30] Affidavit of Adam Cunynghame filed 10 November 2021.
Remittal to Tribunal
On 3 November 2017, the Tribunal wrote to the Primary Applicant advising that the application for review has been remitted to the Tribunal and had been re-allocated to a member for reconsideration.[31]
[31] CB 117 – 118.
On 23 November 2017, the Applicants appointed a representative, Sajen Legal.[32]
[32] CB 121 – 122.
On 12 October 2018, the Applicants’ representative emailed the Tribunal stating that the Applicants intended to submit information to support their application and intended to be heard at a hearing.[33]
[33] CB 123.
On 6 November 2018, the Tribunal invited the Primary Applicant to attend a hearing on 26 November 2018 in person in Brisbane.[34]
[34] CB 125 – 127.
On 15 November 2018, the Primary Applicant’s representative wrote to the Tribunal stating that the Primary Applicant was to have surgery on 15 November 2018 and “will be unfit for any duties” for a period of 6 weeks. The representative sought to reschedule the hearing to a date after 27 December 2018. The Medical certificate was attached to the email.[35]
[35] CB 128 – 129.
On 16 November 2018, the Tribunal granted the request to postpone the hearing, and a new hearing date 9 January 2019 was confirmed.[36]
[36] CB 131 – 133.
On 9 January 2019, the Applicants (other than the youngest daughter) attended the scheduled hearing in person. The Applicants were accompanied by their representative Mr Venardos and assisted by a Punjab interpreter.[37]
[37] CB 135 – 138
At the hearing the Applicants also provided various documents to the Tribunal:
(a)a patient health summary of the 4th Applicant[38],
(b)written submission of the 4th Applicant[39],
(c)written submission of the 3rd Applicant[40],
(d)a newspaper article titled “Bid to kill Dera Salabatpura manager foiled, 7 arrested”[41],
(e)a letter confirming a “people seeking asylum” scholarship at RMIT University for the 4th Applicant[42], and
(f)a confirmation of enrolment at Victoria University for the 3rd Applicant[43]
[38] CB 139
[39] CB 140.
[40] CB 141.
[41] CB 142.
[42] CB 143 – 144.
[43] CB 145.
At the hearing, the Applicants were requested to provide post hearing submissions by 24 January 2019.[44]
[44] CB 137.
On 13 February 2019, the Tribunal extended the deadline to 15 February 2019 for the Applicants’ representative to make written submissions.[45]
[45] CB 148.
On 15 February 2019 the Applicants’ representative provided written submissions, which can be summarised as follows:[46]
(a)The Applicant would face serious or significant harm on return to India from Sikhs due to his DSS membership.
(b)Relocation to another part of India would still cause the Primary Applicant to face harm.
(c)The previous inconsistencies in evidence were minor, and were a result of trauma and the passage of time.
(d)The protection visa application was not made in a timely manner, because the Primary Applicant was confident he would obtain permanent residency.
(e)The events in India were not merely coincidences but were very much related to each other.
[46] CB 149 – 151.
On 18 February 2019, the Tribunal affirmed the Delegate’s decision not to grant the Primary Applicants the protection visas.[47]
[47] CB 155– 192.
TRIBUNAL’S DECISION
The Tribunal’s decision is 38 pages long and spans 192 paragraphs. Part of the decision outlines the refugee criterion and complementary protection criterion.
Paragraphs 18 to 30 of the First Respondent’s (Minister) outline of submissions filed on 4 July 2025 summarised the Tribunal’s reasons. The Court as presently constituted has carefully read the Tribunal’s reasons and accept counsel’s summary as comprehensive, fair and properly referenced. The Court adopt it for the purposes of this judgment (citations omitted):
18. The Tribunal found the applicant’s evidence to be “unconvincing” and in many cases “so implausible as to be fanciful and far-fetched”. It was of the view that the applicant would say or do anything to enable his daughters to remain in Australia.
19. The Tribunal found itself having the “most serious doubts” about the credibility of the applicant’s claims in circumstances where:
19.1. He waited over 6.5 years after his arrival in Australia before applying for protection;
19.2. He chose to return to India in 2009 despite his claim of an assault on him in 2007 and returned to the very location of the alleged assault despite advice from his brother that it would be dangerous for him to do so;
19.3. He did not make an application for protection after returning to Australia in 2009 and his claim to have been shot and left for dead;
19.4. He did not make an application for protection upon the expiry of his 457 visa, but rather elected to pursue an appeal process in relation to that visa;
19.5. He introduced new evidence, for the first time, at hearing about having been locked up for 2.5 years in his place of employment in Victoria, Australia, and not being paid by his employer for four years.
20. Despite its concerns, the Tribunal was prepared to accept certain aspects of the applicant’s claims, including that he was a follower of DSS.
August 2007 assault
21. The Tribunal did not accept that the applicant was attacked by Sikhs or anyone else at the Salabatpura Ashram in August 2007. In this regard, it found that an attack of that magnitude at the main DSS Ashram, had it occurred, would have been widely reported in the media.
Visit to India in 2009
22. The Tribunal found that the applicant’s inconsistent and at times “uncertain” and “confusing” evidence, together with the incredible nature of the circumstances in which the applicant claimed to have been involved on the one occasion he left the house whilst in India, was so implausible as to be “fanciful and far-fetched”, and that when coupled with its credibility concerns, it caused the Tribunal to reject the applicant’s claims as to how he came to be shot.
23. The Tribunal accepted, on the basis of the x-ray evidence, that the applicant had been shot at some time. It did not accept, however, the applicant’s claims as to how he was shot and, in the absence of any evidence or claims as to an alternative reason, found that there would not be any future consequences.
24. The Tribunal, having rejected the applicant’s central claims, did not accept that the applicant feared harm from Sikhs, Sikh extremists or anyone else in India.
Follower of DSS
25. The Tribunal was not satisfied that there was a real chance that the applicant would be at risk of serious harm as a result of being a follower of DSS, or for any of the reasons claimed, in circumstances where there was no evidence that the applicant was an activist and the country information did not indicate that ordinary followers were being targeted for harm. The Tribunal found that the applicant’s claims had been manufactured to fit a particular media story and were “completely lacking credibility”:
Cumulative findings
26. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a).
Complementary protection
27. The Tribunal, relying upon its anterior findings, was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if he returned to India now or in the reasonably foreseeable future.
28. The Tribunal, for the sake of completeness, considered whether the applicant might be able to relocate to avoid any localised threat of harm. In circumstances where the country information indicated that there was a lack of central registries and the police have difficulties tracking down individuals across the nation, the Tribunal found that the chance of anyone being able to locate the applicant was remote. The Tribunal, having regard to the country information and the applicant’s individual circumstances, did not accept that the applicant could not move to another part of India and found that it would be reasonable for him to do so.
29. The Tribunal considered a number of other claims raised by the applicant, including whether the applicant would face harm on account of having no money or due to health issues. It found, however, that the applicant would have “substantial family support”, and that no evidence had been produced in support of the applicant’s claim that young girls were not safe in India. It also noted that it had not received additional updated reports or any submissions as to how the applicant and his wife’s health may be impacted on return to India. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied that there was a real risk the applicant would suffer significant harm.
30. The Tribunal found that the applicant did not satisfy the criterion in s 36(2)(aa).
Based on the findings made by the Tribunal it was not satisfied that the Primary Applicant met the criterion set out in s.36(2)(a) or (aa) of the Act. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Primary Applicants’ protection visa.
PROCEEDINGS IN THIS COURT
The application
The Primary Applicant filed an application for judicial review on 28 February 2019 (Originating Application). The application is brought pursuant to s 476 of the Act.
On 26 June 2025 an amended application was accepted for filing. The Primary Applicant seeks orders that the decision of the Tribunal be quashed and that it be remitted to be determined according to law.
The Primary Applicant lists two grounds of alleged error. The Primary Applicant’s grounds of review, extracted from his amended application, are as follows:
Ground 1: the Tribunal’s decision was affected by apprehended bias.
Particulars
In the course of the hearing, the Tribunal Member disclosed that:
a. he spoke to the previous Member who heard the application, but whose decision was quashed by this Court.
b. The previous Member said “this was one of the hardest decisions he's ever had to make because we have to stick to the issues at hand”.
c. The conduct of the Tribunal in engaging in private communication with a previous Member about the substance, merits or worthiness of the application might cause a reasonable observer to apprehend bias.
Ground 2: the Tribunal failed to deal with a claim or integer of the claim that clearly arises or was raised squarely on the facts before it.
Particulars
a. During the Tribunal hearing, the Applicant’s daughter [C4/T2 Applicant] , gave evidence before the Tribunal, and handed to the Tribunal a copy of a letter she wrote in support of the application, and a patient health summary.
b. The materials provided by [C4/T2 Applicant] disclosed that she had a diagnosis of anxiety and depression, and has suffered from serious anxiety attacks, leading to hospitalisation.
c. Clearly arising from these materials is a claim that if returned to India, [C4/T2 Applicant] may not be able to access appropriate treatment for a diagnosed mental health condition.
d. The Tribunal failed to deal with this integer of the applicant’s claim.
Case management
On 13 May 2019 the Minister filed a response, opposing the orders and seeking that the application be dismissed.
On 28 April 2019 the Minister filed a bundle of relevant documents (Court Book).
On 10 November 2021 the Minister filed an affidavit of Adam Cunynghame, which annexed the amended Orders of the FCC dated 11 June 2018.
On 18 December 2024, a Registrar of this Court issued an Order (Registrar’s Order) directing the:
(a)name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs;
(b)matter be listed for a final hearing;
(c)Applicant file any amended application, written submissions and further evidence at least 28 days before the hearing; and
(d)Minister to file any amended response, written submissions and further evidence at least 14 days before the hearing.
On 19 June 2025, the Court as presently constituted, made Orders directing:
(a)that the previous timetabling orders be vacated;
(b)by 4.00 pm on 24 June 2025, the Primary Applicant file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions; and any additional evidence on which the Primary Applicant seeks to rely; and
(c)By 4.00 pm on 04 July 2025 the First Respondent file and serve an outline of written submissions, a list of authorities relied upon and any additional evidence on which the First Respondent seeks to rely.
On 24 June 2025, the Primary Applicant lodged an amended application and written submissions.
On 24 June 2025 the Primary Applicant filed an affidavit of Amelia Faraone. The affidavit annexed the following:
(a)Transcript of Tribunal proceedings on 9 January 2019;
(b)Department of Foreign Affairs and Trade Country Information Report for India, dated 17 October 2018 which is referred to in the 18 February 2019 Tribunal’s decision; and
(c)copy of the fifth Applicant’s (AVA19) certificate of Australian citizenship dated 9 December 2021.
On 4 July 2025, the Minister complied with the Court’s Order by filing written submissions.
Therefore, the materials before the Court are as follows:
(a)the amended application for judicial review filed 26 June 2025;
(b)a Court Book numbering 192 pages filed 28 April 2019 (marked as Exhibit R1);
(c)Affidavit of Adam Cunynghame filed 10 November 2021 (Exhibit R2);
(d)submissions filed by the Primary Applicant on 24 June 2025;
(e)Affidavit of Amelia Faraone filed 24 June 2025 (Exhibit A1);
(f)submissions filed by the Minister on 4 July 2025;
(g)Affidavit of Kristina Petrovski filed 4 July 2025 (Exhibit R2); and
(h)Bundle of authorities filed by the Minister 4 July 2025.
The judicial review hearing
At the hearing, the Primary Applicant was represented Julie Zhou of Counsel, instructed by Victoria Legal Aid (VLA). The Minister was represented by Joshua Lessing of Counsel, instructed by Sparke Helmore Lawyers.
The Court confirmed with the Primary Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
Although the Primary Applicant was represented, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Primary Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Primary Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Before this Court, the Primary Applicant’s representative made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister’s representative made submissions consistent with the outline of written submissions filed by the Minister on 4 July 2025.
After the Minister made their submissions, the Court invited the Primary Applicant’s representative to respond to what the Minister’s representative had said. The Primary Applicant’s representative response is also considered below.
The role of the Court in judicial review proceedings
In Bhasker v Minister for Immigration and Multicultural Affairs[48] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[49]
50. “The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[50]
51. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[51] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[52] Different kinds of error may overlap.[53] The categories are not closed.[54] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[55]
52. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[56] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[57] It has been described as an “undemanding” standard.[58]
[49] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[50] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[51] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[52] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[53] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[54] LPDT at [3].
[55] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[56] LPDT at [7].
[57] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[58] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[59]
CONSIDERATION
[59] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1
the Tribunal’s decision was affected by apprehended bias.
Particulars
In the course of the hearing, the Tribunal Member disclosed that:
a. he spoke to the previous Member who heard the application, but whose decision was quashed by this Court.
b. The previous Member said “this was one of the hardest decisions he's ever had to make because we have to stick to the issues at hand”.
c. The conduct of the Tribunal in engaging in private communication with a previous Member about the substance, merits or worthiness of the application might cause a reasonable observer to apprehend bias.
The parties largely agree on the principles to be applied in relation to this ground.
A decision will be affected by apprehended bias if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that he or she is required to decide: CNY17 v Minister for Immigration & Border Protection[60] (CNY17); Ebner v Official Trustee in Bankruptcy.[61]
[60] (2019) CLR 76; [2019] HCA 50 at [17], [56] and [132].
[61] (2000) 205 CLR 337; [2000] HCA 63 at [6] and [33].
The application of the rule against bias requires two steps:
(1)identification of the factor which it is said might lead the decision-maker to decide the case other than on its legal and factual merit; and
(2)an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits.[62]
[62] CNY17 at [21] and [57].
The test attributes the hypothetical fair-minded lay observer with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias: ALA15 v Minister for Immigration and Border Protection.[63]
[63] [2016] FCAFC 30, [36].
The hypothetical fair-minded lay observer is also taken to be aware of the nature of the decision and the context in which it was made, and to have knowledge of the circumstances leading to the decision: Isbester v Knox City Council[64] and CNY17.[65] Further still, the hypothetical fair-minded lay person should be imputed with a basic understanding of the statutory regime: see CNY17.[66]
[64] (2015) 255 CLR 135; [2015] HCA 20 at [23].
[65] at [58].
[66] at [17], [51], [94].
The Primary Applicant relied on the decision in CNY17,
17. In CNY17, where material was given by the Secretary to the IAA without the knowledge of the visa applicant, the High Court noted:
“[t]o the extent that the fair-minded lay observer might interpret the material as a communication to the Authority of the opinion of the Secretary about the character of the referred applicant or about the worthiness of the referred applicant to be granted a visa or about the merits of the decision of the Minister to refuse to grant the referred applicant a protection visa, the hypothetical fair-minded lay observer can be expected to be reluctant to discount as unrealistic the possibility that the Authority might have been influenced by that communication. The fair-minded lay observer would expect the Authority and the Secretary to adhere scrupulously to the standard expected of a court and court officer of avoiding any private communication of opinion pertaining to the review and would view any departure from that standard with justifiable suspicion.
18. Analogously to the facts of CNY17, the Tribunal engaged in private communication with a previous administrative decision-maker. The transcript of the Tribunal hearing includes an exchange between the Member and the Applicant’s daughter, who gave evidence in support of the application.
The Primary Applicant further contended that,
19. In response to evidence from the Applicant’s daughter about her scholarship for a nursing degree (T27 L1-5), the Tribunal stated:
MEMBER: If it's any consolation to you, I did speak to Member Attawati [sic] before who was the tribunal member in the last decision and he said that this was one of the hardest decisions he's ever had to make because we have to stick to the issues at hand, that's what he said so I just thought I'd pass that on. …
20. The reference to Member “Attawati” is likely a transcript misspelling of Member Eteuati, who previously affirmed a decision not to grant the applicants protection visas, but whose decision was subsequently quashed by consent by this Court.
21. A number of features of this exchange might cause a fair-minded lay observer to reasonably apprehend that the Tribunal might not have had a fair and impartial mind in making the decision:
(a) First, in the context where the Tribunal was making a fresh decision, and had before it both the file of the Department, and of the previous Tribunal (T3L20-L25), there can be no legitimate reason for the Tribunal to be discussing the Applicant’s claim with the previous Member, whose decision has already been quashed.
(b) Second, the private communication occurred before the hearing, and before the Tribunal had heard any evidence from the Applicant and his witnesses.
(c) Third, the statement by the Tribunal gives to an inference that the Tribunal might have discussed the strength or “worthiness” of the claim with the previous Member, at least to an extent that led the previous member to comment that “this was one of the hardest decisions” he has ever had to make.
(d) Fourth, a fair-minded lay observer might be concerned that the Tribunal discussed with the previous Member what the “issues at hand” were and the need “to stick to [them]”, particularly given the previous decision was quashed for failure to consider all integers of the Applicant’s claim.
(e) Finally, an inference arises from the Tribunal’s statement that the previous member conveyed that he did not consider the “issues at hand” to favour the applicants’ claim, i.e. the decision was “the hardest” because “we have to stick to the issues at hand”.
22. While Member Hawkins made express references on transcript to the fact that he was conducting de novo review, and “obliged to make [his] own findings”, he nonetheless “didn’t find a lot wrong with Member [Eteuati’s] decision”.
23. The hypothetical fair-minded lay observer might interpret the communication between Member Hawkins and the previous member as being about the worthiness or merits of the application or the relevant issues. Like in CNY17, the hypothetical fair-minded lay observer can be expected to be reluctant to discount as unrealistic the possibility that Member Hawkins, consciously or unconsciously, might have been influenced by communication of this nature, particularly where the communication occurred before he heard any evidence from the Applicant and his family.
24. The fair-minded lay observer would recognise that the role of the Tribunal Member in the proceeding is analogical to that of a judge, and therefore expect that the Member adhere scrupulously to the standard expected of a court and court officer by avoiding any private communication of opinion pertaining to the review. Such a hypothetical fair-minded lay observer would view any departure from that standard with justifiable suspicion.
25. If the Court finds that the Member’s conduct in speaking to another Member about the applicant’s claim gave rise to a reasonable apprehension of bias, that error would in and of itself be material, regardless of whether the error had any effect on the decision that was made in fact.
The Minister submitted that,
33. It should further be observed that the rule against bias protects against prejudgment but not predispositions and the formation of a preliminary view on the likely outcome of a case (even in the context of a judicial officer) will be insufficient to demonstrate prejudgment. As is clearly illustrated by the division on the bench in CNY17, whether apprehended bias is present is a question of degree that depends heavily on the circumstances of each case.
34. In this regard, a degree of caution is required in accepting the applicant’s submission at A[24] that the fair-minded lay observer would hold a member of the Tribunal to the same standard as a judicial officer in a court. The processes of a Tribunal engaging in inquisitorial merits review and a Court engaging in adversarial curial determination (acting only on evidence adduced in open Court) are fundamentally different.
35. Additionally, the observations in CNY17 at [23] of the judgment of Kiefel CJ and Gageler J (relied upon by the applicant at A[18]) have limited application in the circumstances of this case:
35.1 CNY17 arose in the particular statutory context of Part 7AA (being a review by the Immigration Assessment Authority) in which the Secretary of the Department of Immigration and Border Protection (ie the Minister’s department) was required to provide to the Authority “review material” which the Authority was then required to consider.
35.2 The review material included prejudicial but irrelevant material of which the review applicant was apparently not aware.
35.3 The specific observations in [23] relating to the expectations of a fair-minded lay observer upon the occurrence of a “private communication” must be understood in the context of a private communication by a party or a representative of a party to the decision maker conveying an opinion as to the character of the applicant, or worthiness of the applicant to be granted a visa or the merits of the decision.
35.4 That situation would be exacerbated by the discrepancy in hierarchical position between the Secretary on the one hand and a Reviewer engaged under the Public Service Act on the other and the specific “cloistered and non-adversarial context of Pt 7AA” such that it would make “any communication from the Secretary to the Authority that might smack of instruction, advice or opinion concerning the conduct or outcome of a review a matter of grave concern”.
36. Despite these observations, Kiefel CJ and Gageler J found that in CNY17’s case no reasonable apprehension of bias arose.
The Court observes that all times before the Tribunal the Applicants were legally represented. This included at the time when Tribunal Member Hawkins made the disclosure that he had spoken with the previous decision-maker Tribunal Member Eteuati. Although it is not fatal to ground one being advanced in this Court, the Court notes that, at the time the disclosure was made, the Applicants’ legal representative did not make an application to Tribunal Member Hawkins that he should recuse himself on the basis of apprehended bias.
The Minister drew the Court’s attention to the decision of the Hight Court in Michael Wilson & Partners Ltd v Nicholls.[67] There the High Court held,
[76] It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias…. If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
[67] (2011) 244 CLR 427 at 449.
There is no reason advance why the Applicants’ legal representative could not have made an application for recusal to Tribunal Member Hawkins. That would have been the appropriate time to do so, rather than to wait until the matter is before this Court to determine whether the decision is affected by bias. The better view is that Applicants waived the objection.
However, for completeness, the Court will consider the application of the two-step process. In doing so, because the Applicants did not make an application to Tribunal Member Hawkins during the Tribunal hearing the result is that the allegation of apprehended bias falls to be assessed after the decision was made and consequently, the reasons for decision form part of the facts and circumstances in which apprehended bias is to be assessed: CNY17.[68].
[68] at [20] (Kiefel CJ and Gageler J), [135] (Edelman J), contrast [69]-[70] (Nettle and Gordon JJ).
Applying the two-step test, the factor which it is said might have lead Tribunal Member Hawkins to decide the case other than on its legal and factual merit is his conversation with Tribunal Member Eteuati (Members’ Conversation). We do not know the full extent of that conversation. All we know is that Tribunal Member Eteuati said “this was one of the hardest decisions he's ever had to make because we have to stick to the issues at hand.” That is to say, Tribunal Member Eteuati made statements sympathetic to the Applicants.
Next it is necessary to determine if there is a logical connection between the Members’ Conversation and the feared deviation from the course of Member Hawkins deciding the case impartially on the merits.
In determining the second step the Court observes that the fair-minded lay observer:
(a)would understand that:
(i)the proceedings in the Tribunal are inquisitorial and not adversarial;
(ii)Tribunal Member Hawkins is a member of a professional decision-making body and well skilled in the requirements of the decision-making process;
(iii)Tribunal Member Hawkins would have, in any case, had access to the Tribunal’s file, the recording of the hearing before Tribunal Member Eteuati and Tribunal Member Eteuati’s decision;
(iv)“it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant”: MZZZW v Minister for Immigration and Board Protection;[69]
[69] (2015) 234 FCR 154 at 173, [67].
(v)the Members’ Conversation was between peers, i.e. Tribunal Member Eteuati did not exercise power over Tribunal Member Hawkins.
(b)would have regard to the conduct of the hearing before the Tribunal and the fact that Tribunal Member Hawkins:
(i)made it clear that he was conducting a hearing de novo;
(ii)self-disclosed the Members’ Conversation.
(c)would be able to see from the way in which the hearing was conducted before the Tribunal that Tribunal Member Hawkins had his own concerns about the veracity of the Primary Applicant’s claims.
(d)would see that there is no reference in the reasons of Tribunal Member Hawkins to anything else that Tribunal Member Eteuati said other than the sympathetic statement made by him.
(e)would further see that there is nothing in the reasons of Tribunal Member Hawkins that would suggest he took any other the information into account, other than the material before him.
Because all of the above should be attributed to the hypothetical fair-minded lay observer, the Court, as presently constituted, does not accept that in this case a fair-minded lay observer, cognisant of the facts of the case and with a general understanding of the statutory framework, might reasonably believe that there was any connection between the Members’ Conversation and the feared deviation from the course of Member Hawkins deciding the case impartially on the merits, even at a subconscious level.
Ground one is not made out.
Ground 2
[T]he Tribunal failed to deal with a claim or integer of the claim that clearly arises or was raised squarely on the facts before it.
Particulars
a. During the Tribunal hearing, the Applicant’s daughter [C4/T2 Applicant], gave evidence before the Tribunal, and handed to the Tribunal a copy of a letter she wrote in support of the application, and a patient health summary.
b. The materials provided by [C4/T2 Applicant] disclosed that she had a diagnosis of anxiety and depression, and has suffered from serious anxiety attacks, leading to hospitalisation.
c. Clearly arising from these materials is a claim that if returned to India, [C4/T2 Applicant] may not be able to access appropriate treatment for a diagnosed mental health condition.
d. The Tribunal failed to deal with this integer of the applicant’s claim.
The Court has already observed that at all times before the Tribunal (at the adjourned hearing on 9 January 2019) the Applicants were legally represented. Notwithstanding that representation, at no time during the Tribunal process did the Applicants expressly advance an argument that if returned to India, C4/T2 Applicant may not be able to access appropriate treatment for a diagnosed mental health condition. There was no substantial clearly articulated argument about the matter.
Even at her oral interview C4/T2 Applicant did not raise concerns about treatment in India. In fact, at no stage did C4/T2 Applicant make her own claims, nor did her legal representative on her behalf. When the legal representative was specifically asked about “other issue that you feel we need to discuss here”[70], the representative responded: “No, not that I can’t put in submissions”.
[70] Tribunal transcript, 9 January 2019, P-51, 27-30.
Following the Tribunal hearing the Applicants were provided with time (later extended) to make further written submissions[71]. The Court has carefully reviewed the post-hearing submissions (summarised above). None of the 5 numbered paragraphs addresses any matter relating to the C4/T2 Applicant.
[71] CB 149 – 151.
For these reasons the Court, as presently constituted, is not satisfied that the claim clearly emerged from the materials. Therefore, ground two is founded on a false premise. The purported claim or integer of the claim is a post-hearing invention. The Tribunal could not possibly have been expected to deal with it without requiring the Tribunal to engage in an entirely creative activity. A hearing on review in this Court is not an opportunity to run a better case than the one conducted before the Tribunal.
Ground two is not made out.
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
The Court will hear the parties on costs.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 6 August 2025
SCHEDULE OF PARTIES
MLG 549 of 2019 Applicants
Fourth Applicant:
AUZ19
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