Kaur v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1608
•3 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1608
File number(s): MLG 3345 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 3 October 2025 Catchwords: MIGRATION - Skilled Nominated (Permanent) (Subclass 190) visa – Application for judicial review – Typographical errors in Tribunal reasons – Alleged failure to discharge statutory task of review – Unreasonable decision making – Bias – Application dismissed. Legislation: Migration Regulations 1994 (Cth) cls 190.216, 190.216(3), 190.312, 4020(1), 4020(4), Schs 2, 4 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
CCC v Minister for Immigration [2001] FCA 682
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
CRI026 v Republic of Nauru (2018) 355 ALR 216; [2018] HCA 19
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nadesan v Minister for Immigration [2013] FMCA 152
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Sharma v Minister for Immigration and Border Protection [2018] FCCA 2152
Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 25 September 2025 Date of hearing: 21 August 2025 and 25 September 2025 Place: Melbourne Solicitor for the Applicants Mr T Meehan, Meehan Legal Solicitor for the Respondents Ms K Petrovski, Sparke Helmore Lawyers ORDERS
MLG 3345 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP KAUR
First Applicant
ARMINDER SINGH AULAKH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
3 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’;
3.The amended application for judicial review filed 21 July 2025 be dismissed; and
4.The applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $9,097.93.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 14 August 2025. The Tribunal affirmed a decision of the first respondent (Minister) to refuse to grant the applicants a Skilled Nominated (Permanent) (Subclass 190) visa (visa).
Reference in these reasons to ‘CB’ pages are references to the Court Book prepared for this proceeding that was tendered and admitted as evidence at the hearing and designated exhibit ‘R1’.
BACKGROUND
The applicants are citizens of India and first arrived in Australia in 2009 on a Student visa (CB 75-7).
On 11 July 2017, the first applicant applied for the visa with the assistance of a migration agent. The applicant’s husband (second applicant) was a secondary applicant for the visa and a migrating member of the family unit (CB 6). The first applicant had previously been refused a subclass 457 visa (CB 78).
On 17 September 2018, the Department sent the applicants a request for further information letter. The letter requested that the applicants provide evidence to satisfy the Public Interest Criterion (PIC), including national police checks, personal particulars for character assessment (Form 80) and immigration health examinations (CB 282-293).
On 9 October 2018, the applicants undertook the required health examinations requested by the Department on 17 September 2018 (CB 393). Prior to the examination, a medical history questionnaire is required to be provided. Departmental records indicated that the second applicant answered ‘no’ to all medical history questions and was “recommended clear” by the Commonwealth physician on 11 October 2018. Relevantly, the second applicant answered “no” to the question directed to alcohol or drug dependence and ‘no’ to the question whether he was taking any prescribed pills or medication.
On 12 October 2018, the applicants’ representative requested further time to provide police checks however provided; County Court of Victoria appeal results, a letter from the first applicant (CB 304), two reference letters regarding the second applicant’s character (CB 305, 306), medical documents, and completed Form 80’s for the applicants (CB 294-352, 314-331, 332-349). The County Court of Victoria appeal results detailed that the second applicant had been sentenced to a two-year community corrections order on 27 September 2018. The order directed the second applicant to undergo assessment and treatment for mental health, drug abuse and dependency as a result of his conviction for multiple driving offences (driving unregistered vehicle, driving with a suspended/disqualified license, theft of motor vehicle) and possession of illicit substances offences.
On 17 October 2018, the second applicant provided a letter to the Department containing an explanation of his history of offending, a pharmacy collection record for methadone treatment and a community service attendance log (CB 356-366). The letter sought to explain that his offending was due to his loss of employment as a Truck Driver, financial difficulties, enduring pain from back and knee surgery in 2009 and concomitant mental health issues (CB 356-9).
On 4 December 2018, the Department requested further evidence of the second applicant’s character (CB 367-373). On 11 December 2018, the applicants’ representative provided further documents regarding the second applicant’s community corrections order, offence sheet and current prescriptions for methadone (CB 374-389).
On 19 February 2019 and 12 July 2019, the Department invited the applicants to comment on the contradictions between the second applicant’s answers to the health examination questionnaire, and his evidence provided in response to the 17 September 2018 request for information (CB 390-6, 413-7). The Department informed the applicants that the evidence of the second applicant demonstrated that he has, or had, an addiction to opioid substances, is currently prescribed medication to combat his addiction in compliance with his community corrections order and exhibits symptoms of poor mental health. This was inconsistent with his answers of “no” to the health examination questionnaire, particularly questions:
·Psychological/Psychiatric Disorder (including major depression, bipolar disorder or schizophrenia)?
·An addition to drugs or alcohol?
·Are you taking any prescribed pills or medication (excluding oral contraceptives, over-the counter medication and natural supplements)?
On 18 March 2019 (CB 399-400), 29 March 2019 (CB 407-412), and 7 August 2019 (CB 418-428), the applicants’ representative provided submissions in response to the invitation to comment.
On 9 September 2019, a delegate refused to grant the visa on the basis that the applicant did not satisfy cl 190.216 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate held that all applicants included in the visa application must satisfy the PIC 4020 requirements. This means that failure to satisfy any of the PIC 4020 requirements results in each person included in the application being refused the grant of the visa. As the delegate found that the second applicant did not satisfy PIC 4020 and cl 190.312, the visa application was refused (CB 429-444).
On 25 September 2019, with the assistance of a migration agent, the applicants applied to the Tribunal for review of the delegate’s decision (CB 445-6).
On 8 July 2020, the Tribunal invited the applicants to a hearing scheduled for 23 July 2020 (CB 454-8). On 16 July 2020, the applicants’ representative requested an adjournment to allow more time to provide material and submissions (CB 459-461). On 21 July 2020, the Tribunal rescheduled the hearing to 14 August 2020 to be conducted by Microsoft Teams (CB 465-9). On 22 July 2020, the applicants’ representative provided a completed response to hearing invitation to the Tribunal (CB 470-5).
On 8 August 2020, the applicants’ representative provided written submissions and further material to the Tribunal, including the second applicant’s community corrections order, medical prescriptions, methadone attendance records, a statement, school records, and written submissions (CB 476-523). On 10 August 2020, the applicants’ representative provided further material relating to the second applicant’s community corrections order and a statement from the second applicant explaining the circumstances of the incorrect answers on the health check (CB 524-549). The second applicant asked that he be permitted to repeat his medical examination by providing the correct information (CB 477).
On 14 August 2020, the applicants appeared before the Tribunal to give evidence and present arguments with the assistance of their representative and an interpreter in the Punjabi and English languages (CB 553-5). On the same day, the Tribunal gave an oral decision affirming the decision under review (CB 556-9).
On 25 August 2020, the Tribunal published its written reasons for decision (CB 564-571) (Decision).
TRIBUNAL DECISION
In the Decision, the Tribunal set out the background facts relevant to the application, the criteria for the grant of the visa and the requirements of PIC 4020. The Tribunal found that the second applicant provided false and misleading answers to an officer of the Commonwealth regarding his drug addiction and medical history. The Tribunal considered the evidence of the second applicant where he explained why he provided incorrect answers, namely that he was rushed and “to get the matter over quickly, I just signed no to everything” (CB 568-570 [1]-[22]). The Tribunal found it was reasonable to expect that the second applicant would be aware of his recent medical treatment and history, and did not accept the second applicant’s explanation that he did not realise that he was providing wrong information, or that he did not intentionally lie or mislead the medical officer in completing his health declaration (CB 570 [22]-[23]). The Tribunal found the secondary applicant’s incorrect responses were a deliberate attempt to not disclose his drug dependency and found there was an element of purposeful falsity in his completion of the form which constituted the provision of false and misleading information in a material particular (CB 570 [24]-[25]).
The Tribunal turned to consider whether to waive the PIC 4020 criteria. The Tribunal found, on the basis of the applicants’ representative’s submissions to the Tribunal, that there were no circumstances that would lead to the grant of a waiver of the criteria (CB 570 [27]).
The Tribunal had regard to the applicants’ evidence that the secondary applicant made an innocent mistake, that he had trouble with his English, and wanted a second chance (CB 570-571 [28]-[31]).
The Tribunal found that the second applicant had breached PIC 4020, that he did not satisfy cl 190.312, and so the first applicant did not satisfy cl 190.216 of Sch 2 to the Regulations, which required each member of the family unit to meet PIC 4020. The Tribunal affirmed the decision on review (CB 571 [32]-[34]).
PROCEEDINGS IN THIS COURT
By amended application filed on 18 July 2025, the applicant seeks judicial review of the Decision. The amended application raises six grounds of review as follows:
GROUND 1:
(1)The Tribunal got my husband’s name wrong throughout the decision
Particulars:
(a)On the first page of the decision, the Tribunal incorrectly identified my husband as “Mr Bansal Singh Aulakh” when his correct legal name is “Arminder Singh Aulakh”.
(b)My husband’s correct name “Arminder Singh Aulakh" is clearly written in:
(i)The original government decision that refused our visas on 9 September 2019
(ii)All our visa application documents
(iii)All the statements and documents we provided to the Tribunal
(iv)Every single piece of evidence in our case
(c)This is not just a small typing mistake. The Tribunal was supposed to be deciding out case, but they could not even get my husband’s name right. This makes us question whether they were properly considering our actual case or someone else’s.
GROUND 2:
(2)The Tribunal Got Important Dates Wrong
Particulars
(a) In paragraph 19 of their decision, the Tribunal said my husband’s important statement was “dated 29 March 2018” but this is completely wrong – it was actually dated 29 March 2019.
(b) They got the year wrong by a whole year. This shows:
(i) They were not carefully reading our evidence
(ii)They did not understand when things happened in our case
(iii)They were not paying proper attention to important documents
(c) Getting this date right was important because:
(i)It shows when my husband was trying to explain what happened
(ii)It shows his state of mind after getting out of prison
(iii)It shows the timing of everything that happened to us
GROUND 3:
(3)The Tribunal was confused about the law
Particulars
(a) The Tribunal kept missing up the legal rules they were supposed to apply, sometimes calling it “PIC 4020” and other times calling it “PICD 4005” when talking about the same thing.
(b) In paragraph 24, they wrote “PICD 4005 under clause 190.312” when they should have written “PIC 4020”.
(c) This confusion shows they did not properly understand the law they were supposed to apply to our case.
GROUND 4:
(4)The Tribunal did not give us a fair hearing
Particulars
(a) The Tribunal did not give us a fair chance to explain our side and ignored important evidence that supported us.
(b) In paragraph 23, the Tribunal said: “I do not accept your explanation that you did not realise that you were providing wrong information” but they did not properly consider all the strong evidence we provided showing it was an honest mistake.
(c) The Tribunal ignored or did not properly consider:
(i) The doctor’s report from Dr John Sherman confirming my husband need the medication for medical reasons
(ii) The psychologist’s report from Ms Shagufta Riaz about my husband’s mental health
(iii) Evidence that my husband was following all his court orders properly
(iv)Proof that my husband was getting treatment and trying to get better
(v)My husband’s detailed explanation of what really happened
(d)In paragraph 22, the Tribunal had already made up their mind before properly considering our evidence. They said they “do not accept” my husband’s explanation about being rushed without fairly weighing all the evidence of his mental state and difficult circumstances.
(e)The Tribunal’s approach showed they had a closed mind and were not willing to fairly consider that it was an honest mistake.
GROUND 5:
(5)The Tribunal’s decision makes no logical sense.
Particulars:
(a) No reasonable person looking at all our evidence could have reached the same conclusion as the Tribunal. Their decision ignores obvious facts and contradicts itself.
(b)The Tribunal’s rejection of our explanation that it was an honest mistake makes no sense given all the evidence showing:
(i) My husband was severely mentally distressed after 37 days in prison
(ii) He was released only 10 days before the medical exam
(iii) A professional psychologist confirmed his poor mental state
(iv) He has documented problems with English and needed an interpreter at the hearing
(v) Even the Tribunal admitted the medical centre was “very busy” and stressful
(c) The Tribunal's reasoning contradicts itself because they:
(i) Admitted all these problems existed in paragraphs 18 and 22
(ii) Then completely dismissed them in paragraph 23 without explaining why
(iii) Failed to explain how these serious problems were not enough to cause an honest mistake
(d) The Tribunal ignored the obvious fact that my husband had no reason to lie when he had already told the government everything about his drug problems and criminal history in other documents.
(e) It makes no sense that someone would try to hide something they had already openly disclosed in their official statement to the government.
(f) In paragraph 30, the Tribunal acknowledged my husband's problems were •drug related• but failed to see how this supported our explanation, since he had always been open about his drug problems.
GROUND 6:
(6)The Tribunal’s conduct and reasoning give rise to a reasonable apprehension of bias
Particulars:
(a) A fair-minded observer would reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of our case. This is evident through:
(i) The Tribunal's immediate dismissal of compelling evidence without proper engagement or consideration;
(ii) A clear pattern of errors that indicate a lack of attention and care in dealing with our matter;
(iii) The Tribunal's language and overall approach, which appeared prejudged;
(iv) The Member's failure to adequately prepare for the hearing.
(b) The Tribunal came to the hearing unprepared and failed to review key documents:
(i) Throughout the hearing, the Member repeatedly said he was "downloading" or "trying to open" documents that had already been submitted well in advance;
(ii) At approximately 53:16-57:04 of the hearing recording, when Mr Bansal attempted to discuss important documents, the Member confirmed the documents were "currently downloading" and he was still "trying to open” them;
(iii) Even documents submitted prior to the hearing-had not been reviewed by the Member;
(iv) This suggests the outcome may have been predetermined, as evidence was not properly read or considered.
(7)The Tribunal demonstrated actual bias through its conduct:
(a) The Member got my husband's name wrong In the decision, referring to him as “Bansal Singh Aulakh” instead of Arminder Singh Aulakh”, which suggests the Tribunal was not properly engaged with the specific details of our case;
(b) The decision contains multiple factual errors, including incorrect dates and legal references, reflecting a careless and dismissive approach;
(c) The Tribunal made dismissive comments about our explanations without fair consideration, as evident In the hearing transcript where the Member repeatedly interrupted the secondary applicant and focused disproportionately on his criminal history rather than the specific circumstances of the medical declaration.
(8)The Tribunal failed to consider our evidence fairly and with an open mind:
(a) In paragraph 23, our explanation was immediately rejected without being properly weighed;
(b) While mitigating factors were acknowledged in paragraphs 18 and 22, they were dismissed without proper reasoning;
(c) There was a clear pattern of accepting adverse material while unfairly rejecting supporting evidence;
(d) Adverse findings were made in relation to documents the Member himself admitted had not been read.
(9)The Tribunal relied on irrelevant and prejudicial considerations:
(a) In paragraph 30, the focus shifted to criminal history, rather than the specific question of whether the medical declaration was an innocent mistake;
(b) There was undue emphasis on past drug use, which appears to have prejudiced the Tribunal's assessment of credibility;
(c) The Tribunal failed to distinguish between historical conduct and the actual issues under review.
(10) The cumulative effect of these issues would lead a fair-minded observer to conclude that:
(a) The Tribunal had already made up its mind before considering our evidence;
(b) Our explanations were never seriously going to be considered;
(c) There was an underlying bias against applicants with criminal histories;
(d) The hearing was treated as a formality rather than a genuine opportunity for review.
The application for judicial review was supported by an affidavit by the first applicant sworn on 11 September 2020 that annexed a copy of the Decision.
On 17 July 2025, the applicants filed an outline of submissions which were in substantially the same terms as the amended application filed 18 July 2025.
On 20 July 2025, the applicants’ representative filed a Notice of Intention to Withdraw as Lawyer and Notice of Withdrawal of Lawyer. On 7 August 2025, the applicants filed a Notice of Address for Service, indicating new legal representation.
The final hearing of the amended application for judicial review was fixed for 14 August 2025 to be heard in person at Melbourne.
At the hearing, Mr Meehan, solicitor, appeared for the applicants. Ms Petrovski, solicitor, appeared for the Minister.
Mr Meehan requested an adjournment as he had been recently appointed and needed further time to prepare and take instructions. The Minister opposed the adjournment request submitting that the Minister was ready to proceed, the applicants were aware on 1 July 2025 that the final hearing was listed to be heard that day and that submissions and an amended application had been filed in compliance with timetabling orders.
However, there was no prejudice to the Minister for a relatively short adjournment to be allowed for Mr Meehan to take instructions. The Court granted the adjournment and the final hearing was fixed to resume on 21 August 2025. Costs were reserved.
On 21 August 2025, Mr Meehan appeared for the applicants and Ms Petrovski appeared for the Minister.
APPLICANTS’ SUBMISSIONS
In addition to the written submissions filed 17 July 2025, the applicants sought to rely on a further outline of submissions in reply filed 16 August 2025.
Mr Meehan addressed each of the grounds of review identified in the amended application for judicial review filed 18 July 2025. It was submitted that contrary to the written submissions filed on behalf of the Minister, the errors made by the Tribunal in the Decision were not merely typographical or trifling, rather when the reasons of the Tribunal are read as a whole, they demonstrated that there had been a failure by the Tribunal to properly engage with the statutory task of reviewing the delegate’s decision in accordance with the Act.
It was submitted that grounds one to three of the amended application for judicial review; constituting the name error (ground one), chronology error (ground two) and the incorrect references to ‘PICD 4005’ and ‘PIC 4024’ (ground three), all need to be taken into account as examples of the Tribunal’s ‘lack of attention’, confusion and failure to engage with the material and claims presented. The ‘fair reading’ principle from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) cannot be deployed to cure fundamental understanding or non-engagement. Mr Meehan also relied on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 as to the requirements of the statutory task of decision-makers. The misidentification of the proper applicants could, it was submitted, realistically have affected the Tribunal’s credibility findings and rejection of the second applicant’s explanation as to why he completed the medical questionnaire form as he did. Materiality only requires a realistic possibility that an error could have affected the outcome, not proof that the outcome would have been different (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17).
Ground four of the amended grounds of review identified a failure to provide procedural fairness and an alleged failure of the Tribunal to engage with critical evidence. The applicants referred to a ‘transcript’, which recorded the Tribunal member repeatedly stating that he was “currently downloading” and “trying to open” documents during the Tribunal hearing. It was submitted that this demonstrated an inference of “non-engagement” with the statutory task.
In relation to ground five, it was submitted that the Tribunal’s Decision makes no logical sense and is unreasonable. It was unreasonable for the Tribunal to accept that the second applicant suffered the burden of; limited English language skills, mental health issues, drug addiction, recent incarceration, and completed the medical questionnaire hurriedly, but then not find the questionnaire was wrong as a result of an innocent mistake. It was also not open to the Tribunal to conclude that the questionnaire was completed with an intent to deceive. This was submitted to have been unreasonable under the test recognised in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS). It was also unreasonable for the Tribunal to find that the second applicant had a motive or intention to conceal information in the health questionnaire, when the second applicant had already provided the adverse information to the Department during the visa process and was attending daily methadone treatment under Court‑supervised orders.
Ground six of the applicant’s submissions was that there was a reasonable apprehension of bias. It was submitted that the cumulative errors would lead a fair-minded lay observer to reasonably apprehend that there was a preconceived decision made by the Tribunal before considering all the evidence (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337).
The applicants conceded that the second applicant ticking ‘no’ to all the questions in the medical questionnaire was an error, but there was no reason, intent or deliberate attempt to defraud. There was no proper consideration of the second applicant’s explanation for the error on the medical questionnaire. There was no other information provided that would be considered false, misleading or bogus. The Tribunal only considered the questionnaire to be false, and that had been incorrectly or unreasonably considered. It was submitted that the Decision should be quashed and the application for review remitted to the Tribunal to be considered in accordance with law.
MINISTER’S SUBMISSIONS
On 31 July 2025, the Minister filed an outline of written submissions and relied on those submissions at the adjourned hearing.
The Minister addressed grounds one to three of the amended application for review regarding typographical errors. The Minister submitted that it is clear that the incorrect references to the second applicant were a simple typographical error and when the Decision is read as a whole, it is plain that there has been no jurisdictional error in the Tribunal’s reasoning process (see CRI026 v Republic of Nauru (2018) 355 ALR 216; [2018] HCA 19 at [57] (CRI026)). Adopting the commonsense approach from case law in regard to typographical mistakes (see CCC v Minister for Immigration [2001] FCA 682 at [29] (CCC)) and the well-settled principle that a decision is to be read fairly and as a whole (Wu Shang Liang at 21), the Tribunal’s mistake was nothing more than an ‘unintended oversight’ (see Sharma v Minister for Immigration and Border Protection [2018] FCCA 2152 at [30]). Typographical errors alone do not demonstrate material jurisdictional error (see Nadesan v Minister for Immigration [2013] FMCA 152 at [9]-[11]).
The Minister conceded that the Decision may not have been appropriately proofread, but nonetheless this does not amount to a material jurisdictional error or a failure to perform the statutory task.
Furthermore, had the Tribunal correctly recorded the second applicant’s name, it still would have reached the same conclusion that the applicant did not satisfy PIC 4020. There was no realistic possibility that the Tribunal’s Decision would have changed and thus the Tribunal’s error was not material (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [16], [36] and [49]).
In regard to ground three, the references to ‘PICD 4005’ (CB 570 [24]) and ‘PIC 4024’(CB 570 [27]) are simple typographical errors. It is clear from the surrounding paragraphs and wording in the Decision that the Tribunal applied the correct criterion, being PIC 4020. The Tribunal was required to satisfy itself that PIC 4020 was enlivened, and if so, whether exceptional circumstances existed. The Tribunal was satisfied that false information had been provided, acknowledged the arguments presented and written material provided by the applicants, and found that no compelling or compassionate circumstances existed. Typographical errors are immaterial in that assessment.
In response to ground four, the Minister submitted that the Tribunal complied with its procedural fairness obligations under Pt 5, Div 5 of the Act. The applicants were invited to a hearing in compliance with ss 360 and 360A of the Act, which they attended via video-link with their representative. The applicants were on notice from the delegate’s decision and the Tribunal’s questioning at the hearing about the determinative issue on review. Furthermore, there was no information that the Tribunal was required to put to the applicants pursuant to s 359A of the Act.
There was no failure to engage with critical evidence. The Tribunal was not required to refer to every piece of evidence and every contention made by the applicants (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]). Even if the additional information was overlooked, it was not so cogent or important to the applicants’ claims and the Tribunal’s findings such that jurisdictional error has occurred (see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [46]-[56]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]).
The Minister submitted that ground five raises no higher than an emphatic disagreement with the Tribunal’s decision and invites the Court to engage in impermissible merits review (see Wu Shang Liang at 272). A finding of unreasonableness, illogicality or irrationality in reasoning is a high bar and requires more than emphatic disagreement with a decision (SZMDS at [124], [129]). To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated and ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]). The Tribunal based its findings on the false declarations made on the medical questionnaire, not the second applicant’s criminal record, drug use or dependency, and the Tribunal expressly notes this in its reasons (CB 570 [25]). It was not unreasonable for the Tribunal to come to its Decision based on the second applicant’s withholding of information.
To ground six, the Minister submitted that the applicants were permitted to provide evidence and present arguments which the Tribunal duly considered and weighed. This ground also amounts to simple disagreement with the Tribunal’s Decision and invites the Court to engage in impermissible merits review (Wu Shang Liang at 272). The Tribunal’s Decision alone cannot be relied on to support a finding of an apprehension of bias, and neither can any inference of bias be drawn from the mere fact of adverse findings (see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3]).
The Court raised that there was no copy of the transcript of the hearing before the Tribunal although a transcript is referred to in the applicants’ outline of submissions in reply. The Minister initially objected to any transcript being admitted into evidence at this late stage of the proceeding. If reliance was to be placed on a transcript of the hearing, then the Minister fairly requested an opportunity to review the transcript and present further submissions if required. Mr Meehan for the applicants said that he believed that the transcript had been produced by his predecessor and agreed to provide a copy to the Minister for review. The Court indicated it was prepared to allow the belated tender of the transcript with the parties to provide any objection to the accuracy or admissibility of the transcript in writing, with any further submissions to be filed regarding the relevance of the transcript to the issues in dispute, and for the matter to be re-listed to allow for further oral submissions if necessary.
REPLY
In response to the submissions made on behalf of the Minister, Mr Meehan for the applicants submitted that the records relating to the second applicant’s offending and addiction to illicit substances were provided because they were relevant to address character matters only, not any medical condition and it was not his clients’ intention to mislead the Minister rather it was a simple and inadvertent mistake that should be excused. Further, on his instructions the second applicant was prescribed methadone syrup for pain relief and addiction. There was no attempt to conceal those matters and it was incumbent on the Tribunal to properly address the explanation for providing inaccurate information when completing the medical questionnaire.
FURTHER EVIDENCE AND SUBMISSIONS
At the conclusion of the hearing on 21 August 2025, the Court made orders for the applicants’ solicitor to deliver a copy of the transcript to the solicitors for the Minister. The Court also ordered that the Minister indicate whether there is any objection to the transcript being admitted into evidence, and if so, for both parties to file and serve any further written submissions regarding the relevance of the transcript to the issues to be determined.
A copy of the transcript was produced as ordered and no objection was taken by the Minister to the Court receiving the transcript as evidence.
The proceeding was listed for mention before the Court on 24 September 2025 to allow the parties to address the relevance of the transcript and make further submissions.
The transcript was formally tendered on behalf of the applicants and marked exhibit ‘A1’. The applicant also tendered a bundle of documents which were marked exhibit ‘A2’ which were said to be the documents that the Tribunal member was “downloading” and “trying to open” at the Tribunal hearing. These were the documents which the applicants say the Tribunal failed to consider when making the Decision. It was submitted that these were important documents and the omission to properly consider them indicated the Tribunal’s want of engagement with the issues under review. The documents included a submission prepared by the applicants’ migration agent dated 8 August 2022. The remaining documents in the bundle were documents in the Court Book obtained from the Tribunal file.
When asked if the transcript and bundle of documents were relied on to support the allegation of apprehended or actual bias, Mr Meehan was reluctant to categorise either as evidence of bias. Instead, Mr Meehan relied on the transcript and documents to support the submission that the Tribunal member could not have considered these documents during the short period that the Tribunal member was attempting to “download” the documents (A1 at 00:56:57) and the delivery of the oral reasons for decision which occurred (A1 at 1:00:18). This reflected predetermination of the evidence and a failure to afford a fair hearing by the Tribunal.
Ms Petrovski on behalf of the Minister submitted that there was no dispute that the submissions dated 8 August 2020 were included in the Tribunal file but were inexplicably not included in the Court Book. It appears that another document that resembles a submission has been reproduced at CB 477–488. However, paragraphs [17]-[20] of the Decision and the transcript of the oral reasons reflect that the Tribunal did consider the documents that were referred to in the transcript and downloaded, including the submission and the statements of both the first and second applicants.
CONSIDERATION
The function of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the delegate’s decision according to law.
In the Decision the Tribunal identified the issue to be determined as whether the applicants satisfied the requirements of reg 190.216 (CB 568 [4]). One of the requirements of the regulations was whether the applicant and each member of the applicant’s family satisfied PIC 4020 contained in cl 4020 of Sch 4 of the Regulations. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer or a Medical Officer of the Commonwealth a bogus document or information that is false or misleading in a material particular in relation to the application for the visa (reg 4020(1)).
The second applicant gave false and misleading information to a Medical Officer of the Commonwealth in relation to the application for the visa. The Tribunal found that the second applicant breached PIC 4020 (CB 570 [25], [26]). The Tribunal then found (because it was conceded) that there were no grounds upon which the Tribunal or the Minister could waive the breach (cl 4020(4) (CB 570 [27]). Having found that the second applicant was in breach of PIC 4020, the only finding available to the Tribunal was that the applicants’ application for the visa did not satisfy reg 190.216(3) of the Regulations (CB 571 [32]). Therefore, the Tribunal was required to affirm the decision under review where the delegate reached the same conclusion.
In finding that there was a failure to satisfy reg 190.216(3), the Tribunal considered the claim made by the second applicant that the misleading information provided to the Medical Officer of the Commonwealth in the medical questionnaire, was innocently made or inadvertent due to stress and anxiety (CB 569-570 [18], [19], [20], [21] and [22]). The Tribunal did not accept this claim and held that the second applicant knew or ought to have known that the medical questionnaire was an important document that should not be misleading in the answers given (CB 570 [23], [24]). This was a finding that was open on the evidence.
Errors
The typographical errors made by the Tribunal were unfortunate and reflect an omission to proofread the written reasons. However, the errors were not so material as to render the findings and conclusions reached as jurisdictional (see CRI026 at [57] per Kiefel CJ, Gageler and Nettle JJ and S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [34] per Moore J). The Tribunal clearly identified the issue to be determined as a relatively simple one and considered the evidence of a failure to satisfy the regulations, and the absence of circumstances, that may have invoked the limited circumstances in which the Minister and Tribunal may waive a breach of PIC 4020. The typographical error in relation to the second applicant’s name on the first page of the Decision did not detract from the reasoning when read as a whole. The transcript that was tendered on behalf of the applicants also shows that there was no error by the Tribunal in identifying the correct name of the second applicant at the time of the hearing and in the ex tempore reasons given at the conclusion of the hearing.
The “date error” identified by the applicants as a material error by the Tribunal (Ground 2) was in fact no error at all. In paragraph [19] of the Decision the Tribunal refers to the second applicant’s statutory declaration dated 29 March 2018 (CB 569). That declaration was in all likelihood made on 29 March 2019 because it was submitted to the delegate at that time with other documents dated March 2019. However, the statutory declaration was in fact dated 29 March 2018 (CB 412). This was not an error by the Tribunal but appears to be an error by either the person that witnessed the declaration or by the second applicant when completing the document. Either way and regardless of the date of the document, the Tribunal considered the declaration but was not persuaded by the explanations given by the second applicant as to the circumstances in which he completed the questionnaire. The Tribunal was not persuaded that the questionnaire contained innocent omissions (CB 569-570 [19], [20], [21] [22] and [23]). That finding was open and the reasoning forward was rationally and logically explained.
Further, the Decision does not reflect any confusion regarding the applicable law or the construction to be given to the Regulations and PIC 4020. In paragraph [24] of the Decision, the Tribunal referred to ‘PICD 4005’ and in paragraph [27] to ‘PIC 4024’ (CB 570). These are also typographical errors. The first is clearly so, where the Tribunal was considering the definition of “information that is false and misleading in a material particular” contained in PIC 4020(5) of the Regulations. The second is an erroneous reference to PIC 4024 which should be a reference to PIC 4020(4) of the Regulations where the circumstances in which the Minister may waive the requirements of 4020(1) and 4020(2) are identified. The Minister must be satisfied of compelling and compassionate circumstances. When read in context, the error is an obvious typographical error, but the Decision does not disclose a failure to understand the requirements of the Regulations or of the prohibition against an applicant providing “false and misleading” information.
Fair Hearing
The transcript does not reflect any bias or any failure to provide procedural fairness or a fair hearing. The transcript also records that the Tribunal member put the delegate’s findings to the applicants in clear terms and invited the applicants to explain their position. The applicants were represented at the hearing by their migration agent who made submissions on their behalf (A1 pp 18–21). At page 11 and 12 of the transcript, the Tribunal member is recorded as asking the second applicant why the decision to refuse the visa should be overturned (A1). The member referred to the statutory declaration and the explanation given by the second applicant for providing false information. The second applicant explained that he remained on a methadone program and was taking methadone at the time of completing the questionnaire and that it was to assist him with pain management. This was consistent with the medical reports submitted to the Tribunal by the applicants and their agent. The member also openly expressed his doubts to the second applicant about the credibility of his claim to have innocently completed the medical questionnaire with incorrect information. In the circumstances, the applicants were given ample opportunity to put their case and their claims to the Tribunal at the hearing but the Tribunal identified, correctly, that the issue to be determined was whether the second applicant provided false and misleading information (see A1 p 15 at 00:42:26).
Illogical Reasoning
The applicants contend that no reasonable person could have reached the same conclusion as the Tribunal in the Decision after considering the evidence. The rejection of the applicants’ evidence is said to “make no sense”. It is contended in the amended application for judicial review that the Tribunal contradicts itself in paragraphs [18], [22] and [23] of the Decision (CB 569-570). However, paragraph [18] contains a simple description of the content of the statutory declaration dated 29 March 2018 (CB 569). It does not constitute a finding of fact by the Tribunal. In paragraphs [22] and [23], the Tribunal rejects the explanation given by the second applicant in the declaration. That is not contradictory, and the rejection also contains a logical and rational explanation. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40] Chief Justice Gleeson and Justice Gummow observed:
[40] Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
The applicants’ submission in relation to the logic of the reasoning in the Decision is misplaced. Whilst the applicants may disagree with the rejection of the second applicant’s evidence and explanation, that does not mean that the Decision is illogical or irrational (see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [92] per Wigney J).
Bias
An allegation of bias must be distinctly made and strictly proven (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J). Here, it is alleged that a fair-minded observer would reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the applicants’ claims. It is said that this is because the Tribunal dismissed compelling evidence without proper engagement or consideration which, when coupled with the typographical errors and an alleged lack of attentiveness by the Tribunal (evidenced by the transcript), showed that the Tribunal “prejudged” the application for review. The applicants go further and allege that there was actual bias (Ground 6, particular (iii)) by the Tribunal making; the name error, the chronological error and the errors in relation to references to PIC 4020 and PICD 4005, submitting that the Tribunal showed a careless and dismissive approach. This is drawing a long bow that is not supported by or reflected in the transcript.
There is nothing apparent from the Decision to disclose a failure to approach the issues to be determined with an open mind or that the Tribunal predetermined the outcome. The transcript does not reveal any comment or suggestion that the Tribunal approached the task of review with anything other than an open mind.
The test for apprehended bias was set out in Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 at [27]–[32] as follows:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
The Tribunal recorded the second applicant’s claim that the completion of the questionnaire was an innocent omission and careless in the circumstances, but rejected that explanation based on available inferences. The Tribunal observed that the second applicant’s criminal history influenced the decision made, however that observation when read in context was an explanation of why the completion of the questionnaire was misleading (CB 571 [31]). The Tribunal found the questionnaire misleading because the second applicant did not disclose that he was prescribed methadone and ordered by the County Court to take methadone because of drug dependence. This should have been disclosed but was not.
The issue to be determined by the Tribunal was whether the questionnaire was a misleading statement made to a Medical Officer of the Commonwealth, which it clearly was. The Tribunal identified that issue in paragraph [25] of the Decision as critical (CB 570). The Tribunal found that there was a breach of PIC 4020. This was an adverse finding against the second applicant but it does not establish apprehended or actual bias. In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] Kenny J said:
[23] This said, the authorities establish that a case of actual bias is not made out simply by showing that a decision-maker reached a preliminary view, even on a critical matter. Actual bias will be shown only if the preliminary view was incapable of alteration: see Jia, at 532 per Gleeson CJ and Gummow J. This must be so in the case of the Tribunal, since no hearing is held where the Tribunal has formed the view, on the papers, that a decision favourable to the applicant should be made: see the Act, s 425(2). The authorities show, moreover, that actual bias is not necessarily to be inferred from the fact that, during a hearing, a decision-maker indicated impatience and irritation, or adopted a discourteous and aggressive approach towards a party: see, e.g., Sarbit Singh, at 9-10; C v Minister for Immigration and Multicultural Affairs, at [13]-[16]; H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, at [12]; (2000) 63 ALD 43, at 46 per Branson and Katz JJ (a decision set aside by the High Court on a different ground). It will always be a question of fact and degree as to whether a closed mind can be inferred from any hostility displayed by the decision-maker in the course of decision-making towards a party or a party's case.
The transcript is important (see Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at [6]-[7] per Lockhart J). Here the transcript does not disclose any unfair exchange or any comments reflecting either a closed mind or hostility toward either applicant. Nor does it disclose any refusal to engage with important or critically important information (see SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591 per Mansfield J). The allegations of apprehended bias and actual bias are not established to the high level of proof required and must be dismissed.
Each of the grounds of review numbered one to six do not disclose material jurisdictional error. The typographical errors made by Tribunal were not jurisdictional and were not so significant that they reflect a failure to perform the statutory task of an impartial and independent review of the delegate’s decision. There was no confusion as to the applicable law or any legal test to be applied by the Tribunal in performing the review. The Decision is both logical and rational and is one that another decision-maker acting reasonably could readily make based on the evidence. There is no evidence of bias, actual or apprehended and the amended application for judicial review is therefore dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $9,097.93, which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). This includes the costs thrown away by the adjournment of the hearing on 14 August 2025 and the costs of and incidental to the consideration of the transcript and a further appearance on 25 September 2025. The sum claimed is fair and reasonable in the circumstances.
ORDERS
The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent be amended to ‘Administrative Review Tribunal’.
The amended application for judicial review filed 21 July 2025 be dismissed.
The applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $9,097.93.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 3 October 2025
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