Priya v Minister for Immigration and Citizenship
[2025] FedCFamC2G 952
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Priya v Minister for Immigration and Citizenship [2025] FedCFamC2G 952
File number(s): ADG 229 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 20 June 2025 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – treatment of prejudicial material – apprehended bias – where fair-minded lay observer might consider Tribunal affected by subconscious bias – futility – application succeeds – writs issued. Legislation: Migration Act 1958 (Cth) ss 359(2), 359AA, 359A, 359A(4)(c), 360, 360A, 476
Migration Regulations 1994 (Cth) Sch 2 cll 500.212, 500.212(a), 500.312
Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 96
AWS25 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 869
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chhetri v Minister for Immigration [2016] FCCA 490
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456
Isbester v Knox City Council (2015) 255 CLR 135
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedcFamC2G 921
Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Webb v The Queen (1994) 181 CLR 41
Williams v The Commonwealth (2012) 248 CLR 156
Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 15 May 2025 Date of hearing: 16 April 2025 Place: Adelaide Applicants: Self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Tara Rossetto Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 229 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRIYA
First Applicant
DEEPAK KUMAR
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
2.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 26 June 2021.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.
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 GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicants Student (Temporary) (Class TU) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. The Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has found a jurisdictional error in the Tribunal’s decision. On that basis, the application has succeeded.
BACKGROUND
The applicants are husband and wife and first arrived in Australia on 14 June 2018 as the holders of a tourist visa which was valid until 14 September 2018 (Court Book (CB) 15, 194). They are citizens of India (CB 2-6).
On 12 September 2018, the applicants applied for the visas (CB 1-21). The applicants were assisted in preparing their application by a registered migration agent (CB 27-29). Their application was accompanied by a statement from the first applicant (the applicant) and an affidavit of support from her father (CB 22-26). In her statement, the applicant expressed an intention to study a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality (CB 24).
On 9 October 2018, a delegate of the Minister refused to grant the applicants the visas (CB 32-37). The delegate was not satisfied that the applicant met the genuine temporary entrant criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 32-34). That clause relevantly provides:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
As a result of the applicant not meeting that criteria, the delegate was not satisfied that the second applicant met the relevant criteria in cl 500.312 “as a member of the family unit of a person who holds a student visa”.
On 25 October 2018, the applicants appointed a new migration agent (CB 41-43), and on 29 October 2018, the applicants were re-notified of the delegate’s decision as the first notification letter contained incorrect advice about their review rights (CB 44-48).
On 29 October 2018, the applicants applied to the Tribunal for review of the delegate’s decision (CB 49-50). On 12 March 2021, the applicants again appointed a new representative (CB 55-57).
On 14 April 2021, the Tribunal invited the applicants, via their appointed representative, to attend a hearing scheduled for 5 May 2021 (CB 60-62).
On 28 April 2021, the applicants provided the Tribunal with various supporting documents, including written submissions addressing the genuine temporary entrant criteria, academic certificates, financial records, and a confirmation of enrolment in an Advanced Diploma of Hospitality Management which the applicant was due to complete in October 2021 (CB 69-104).
On 5 May 2021 and 1 June 2021, the first applicant and her representative attended hearings before the Tribunal (CB 105-107, 124-126).
On 5 May 2021, after the first hearing before the Tribunal, the Tribunal invited the applicants to comment on or respond to information relating to an allegation that the primary applicant was in Australia for employment purposes and had been working for cash without the right to do so (CB 110-111).
On 14 May 2021, the applicant wrote to the Tribunal, via her migration agent, denying the allegation and that her intentions to stay in Australia are genuine (CB 114-115).
On 7 June 2021, following the second hearing, the applicants provided further documentary material in support of their submissions, including statutory declarations and bank statements (CB 127-183).
On 26 June 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 187-202).
On 28 July 2021, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa under review, noting that the applicants applied for the visas on 12 September 2018. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).
The Tribunal explained that a delegate of the Minister had refused to grant the visas on the basis that the applicant did not satisfy the genuine temporary entrant criteria in cl 500.212 of Schedule 2 to the Regulations (at [3]).
The Tribunal confirmed that the applicant appeared before the Tribunal on 5 May and 1 June 2021 to give evidence and present arguments, and that she was assisted by her migration agent and a Punjabi interpreter at those hearings (at [4]-[5]).
The Tribunal outlined all the evidence submitted by the applicants in support of their application, which included the delegate’s decision, bank statements, valuation certificates, certificates of enrolment, affidavits of support, the applicants’ own written submissions, and other supporting documents (at [6]-[7]). The Tribunal also indicated that it had regard to the submissions made by the applicants to the Department at the time of application (at [8]).
At the hearing on 5 May 2021, the Tribunal put to the applicant, in accordance with s 359AA of the Act, particulars of information that the Tribunal considered would be relevant in affirming the delegate’s finding that the applicant was not a genuine student, namely, an anonymous allegation that the applicant and her husband are not in Australia for genuine study purposes and that they are working for cash without the right to do so (at [11]-[12]).
The applicant was invited to comment and was advised that she may seek additional time to respond, however the applicant elected to respond at the hearing to the effect that she has never worked in Australia and that she is financially supported by her family in India. At this point, the interpreter became disconnected and the hearing was adjourned (at [12]-[13]).
That same day, the Tribunal wrote to the applicant under s 359A of the Act and invited her to comment on the s 376 certificate with respect to the adverse allegation (at [20]). The applicant responded to deny the claims but did not challenge the validity of the certificate (at [21]). The Tribunal considered the allegation and the applicant’s response, however ultimately placed no weight on the allegation in assessing the applicant against the genuine temporary entrant criteria (at [31]).
At the resumption of the hearing on 1 June 2021, the applicant gave oral evidence that she wanted to open a restaurant in India, applying what she had learned in Australia, and that she no longer wanted to work in a beauty salon because that industry was too competitive. She again denied working in Australia and claimed that her family in India had been financially supporting her. She provided bank statements in support of this and said she planned to return home to India when she completes the course in five months’ time (at [14]-[19]).
The Tribunal set out the relevant legislative provisions in Schedule 2 to the Regulations for the grant of a student visa as outlined above at [5] of these reasons (at [22]-[23]). The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (at [25]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [26]).
Against this background, the Tribunal made the following findings.
The Tribunal accepted that the applicants had ongoing personal ties to India and some economic incentive to return, but it did not find these were significant incentives for them to return. In fact, the Tribunal found that the applicants had a strong incentive to remain in Australia where they have accommodation and the support of family (at [27]-[28]).
The Tribunal did not accept the applicant’s claim that she only came to Australia for a housewarming party and that she was inspired to change plans because of family and friends appreciating her cooking. The Tribunal did not accept that the applicants would leave their businesses and four-year-old son in India and extend their stay in Australia so significantly without a greater level of planning. The Tribunal accepted that the applicant had maintained enrolment and completed relevant courses but found there was no evidence that she had investigated undertaking similar studies in her home country. The Tribunal was not satisfied she was studying hospitality courses in Australia for genuine reasons in accordance with the visa requirements, and considered the applicants were using the visa primarily to maintain ongoing residence in Australia (at [29]-[30]).
The Tribunal considered the evidence provided by the applicants about their financial situation and ability to support themselves in Australia, but it was not satisfied they had provided an adequate account of their financial position such that it allows them to live and study in Australia for three years without working, or an adequate explanation for the value of living and studying in Australia on minimal available funds when they have businesses back home in India (at [32]-[33]).
Having weighed the evidence individually and cumulatively, the Tribunal was not satisfied the applicant intended to stay in Australia temporarily, and was therefore not a genuine applicant for entry and stay as a student as required by cl 500.212. The Tribunal found that the applicant did not meet the criteria for the grant of the visa and, accordingly, affirmed the delegate’s decision (at [34]-[36]).
Having found that the first applicant did not satisfy the criteria for the grant of the visa, the Tribunal therefore found that the second applicant was also unable to meet the criteria because they are not the member of the family unit of a person who satisfies the primary criteria in cl 500.212 (at [38]).
The Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [39]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 28 July 2021 contains eight grounds of review as follows (without alteration):
1.My name is Priya and I am primary applicant of Student visa application.
2.I applied for Student visa application by 12th September 2018 which was refused by 9th October 2018.
3.I applied for merit review application with Administrative Appeals Tribunal within 21 days from the date of refusal.
4.My hearing was conducted on 01th June 2021, the member conducted the PRISMS Checks in regards to my enrolment which effectively conveyed that I have completed Certificate III, Certificate IV and Diploma of Hospitality Management. Currently, I am doing Advanced Diploma of Hospitality Management which is due to finish by 24th October 2021. Administrative appeals Tribunal made Jurisdictional Error by not considering my study which I completed during my stay in Australia.
5.The grounds of the application for my case to be re-considered by Federal Circuit Court as I feel that I did not get fair decision from AAT.
6.I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I do not meet the criteria for a Subclass 500 visa. However, I did mention these points in my Hearing statement and I provided all the relevant and necessary evidence in my hearing.
7.My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
8.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia
The applicants also filed an affidavit with that judicial review application on 28 July 2021, annexing a copy of the Tribunal’s decision and the delegate’s decision.
The applicants appeared before the Court on 16 April 2025 without legal representation. The Court confirmed with the applicants that they had received copies of the Court Book and the Minister’s submissions.
At this hearing, the Court raised with the parties the question of whether the Tribunal’s approach to the prejudicial information covered by the s 376 non-disclosure certificate revealed any error, having regard to the authorities of CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17), MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152 (MBJY) and FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 (FSG17). The parties were granted leave to file further written submissions on that point following the hearing. The Minister filed further written submissions on 2 May 2025, and the applicant filed an affidavit on 15 May 2025 which will be treated as her written submissions in reply.
The materials before the Court include:
·The application for judicial review and supporting affidavit filed by the applicant on 28 July 2021 (the affidavit being taken as read and in evidence at the hearing on 16 April 2025);
·A Court Book numbering 202 pages (marked as Exhibit 1);
·Written submissions filed on behalf of the Minister on 26 March 2025;
·Further written submissions filed on behalf of the Minister on 2 May 2025; and
·Written submissions in reply filed on behalf of the applicant on 15 May 2025.
The applicants were not represented at the hearing on 16 April 2025 and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter, the applicants were invited to tell the Court what they believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) (Wu Shan Liang) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicants that this was not an exhaustive list and they should attempt to tell the Court what they say the Tribunal did wrong.
CONSIDERATION
As outlined above, the application sets out eight grounds of review. In reality, the first three grounds merely set out the background of the matter and do not raise any grounds of judicial review. Noting the applicants were unrepresented in this matter, however, the Court has endeavoured to interpret their grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In these circumstances particularly, the Court gave the applicants an opportunity to say what was wrong with the Tribunal’s decision.
Against this background, the applicant said she had already started studying when her visa was refused. She has since completed some of those courses but said she received no other benefits as she had no work rights at the time. She reiterated that the allegation she was working for cash was false and that her intention is still to start working abroad once she completes her studies.
The applicant was reminded that the Court could only assess whether the Tribunal made a jurisdictional error. The applicant said that her hearing was very short because the interpreter was disconnected, and so she didn’t get the opportunity to make her case to the Tribunal. The applicant said that her study would be “totally wasted” if she cannot get work rights so she can gain experience. The second applicant was also invited to address the Court and he said he supported the primary applicant’s submissions without adding anything further.
In reply to the applicants’ oral submissions concerning the length of the hearing, counsel for the Minister submitted that the applicant was in fact invited to two hearings before the Tribunal. The first hearing lasted 24 minutes before being adjourned due to connectivity issues with the interpreter, and the second hearing ran for 27 minutes. The Minister submitted the applicants were afforded roughly an hour of Tribunal hearing time in total. The applicant submitted in reply that this was not a substantial amount of time considering the time taken to interpret what was being said. The applicant reiterated that she was not given an opportunity to respond to the anonymous allegation, and further, denied the allegation. She also put forward that she is a genuine student.
The Tribunal’s treatment of ‘prejudicial information’
As mentioned at [37] of these reasons, the Court invited the parties to address whether the Tribunal’s treatment of the ‘prejudicial information’ covered in the s 376 certificate, and whether the anonymous allegation revealed an error in the nature of apprehended bias. The information was said to be from a member of the public and alleged that the applicant was in Australia for employment purposes and had been working for cash without the right to do so.
The Court’s concern here was that whilst the Tribunal had expressly said it would give the prejudicial information no weight, it appeared to be implicit in its reasoning that the prejudicial information may have had a subconscious effect on the Tribunal’s decision. That invokes a consideration of whether any potential subconscious effect may lead to apprehended bias.
The relevant principles for apprehended bias are articulated in various cases, notably CNY17 at [17]-[18], [69]-[70] and [131]-[132]; FSG17 at [32]; and Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Isbester). The test for apprehended bias is “a test of a ‘double-might’: whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial mind to the fair resolution of the issue to be decided” (CNY17 at [132] per Edelman J).
Two steps flow from that test (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]; CNY17 at [56]; Isbester at [12]; and XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553 at [206]). The first step requires the identification of what it is that might lead a decision-maker to decide a case other than on its factual and legal merits. In essence, this requires the Court to determine what may affect a decision-maker’s impartiality by identifying that interest. Such an interest may include but is not limited to: a decision-maker’s failure to disqualify themselves by conduct, by extraneous information, by association, or by a direct or indirect interest in the proceedings (CNY17 at [57]; Isbester at [21]). Second, one must demonstrate a logical connection between the thing identified and the suspected deviation from deciding the case on its merits. One must articulate the suggested effect resulting from the claimed interest, influence or extraneous information (CNY17 at [57]; Isbester at [21]).
It has been held that “cases where knowledge of some prejudicial but inadmissible fact or circumstance” can give rise to a reasonable apprehension of bias (Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J, cited in CNY17 at [134] per Edelman J).
In CNY17, the High Court considered whether exposure to highly prejudicial material could give rise to an apprehension of bias. In that matter, the delegate provided the Immigration Assessment Authority with departmental documents asserting that the appellant had a “history of aggressive and/or challenging behaviour when engaging with the [D]epartment” and had been “involved in many incidents while in detention”. Nettle and Gordon JJ held at [51] that:
A fair-minded lay observer…might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider. The source of the apprehended bias is the irrelevant and prejudicial material. That material might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that the appellant was not a person who should be believed. A fair-minded lay observer might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious.
Edelman J observed that it did not matter whether the decision-maker was actually biased, or put the prejudicial material to one side, because there was a risk of subconscious bias which could not be “cured” by putting that material aside (at [97]). Edelman J rejected a contention that administrative decision-makers routinely ignored irrelevant material noting that “[p]utting the material aside does not overcome the subconscious bias which might result from seeing that material” (at [99]).
The High Court was not required to consider whether or not an express disavowal of the prejudicial material would assuage the risk of subconscious bias (see FSG17 at [35]). That, however, was considered by the Full Court of the Federal Court in FSG17. In that matter, the Full Court noted that the decision-maker had identified the prejudicial material and subsequently went on to state why the material was irrelevant and that it would disregard that material (at [39]). The Full Court observed that, in many cases, that would have been sufficient to assuage any apprehension of bias. However, in FSG17, the Full Court considered that the material was so highly prejudicial that a fair-minded lay observer might reasonably consider that it was too difficult to completely disregard that information (at [41]). In this sense, the Full Court noted that the question in apprehended bias matters is not the same as the principle considered in cases such as ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 96 in relation to the denial of an opportunity to address adverse material. As stated by the Full Court, in apprehended bias matters, “[t]he enquiry is directed to the question of apprehended bias [-] what a fair-minded lay observer would reasonably apprehend. The possibility of subconscious effect is only relevant in that latter sense” (FSG17 at [41]).
In MBJY, O'Callaghan and Colvin JJ said (at [51]-[52]):
…Whether such material gives rise to apprehended bias will depend upon whether, having regard to the particular context, the material is of a kind that it may affect the decision-maker, including in a subconscious way.
Obviously enough, it is not sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker. What must be shown is that, having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by that material.
In this matter, the Minister submitted that this case is distinguishable on its facts from CNY17, MBJY and FSG17, as the decision-makers in those cases had before them highly prejudicial material relating to an applicant’s criminal conduct, the nature and magnitude of which is not applicable to these applicants. Nevertheless, it is submitted by the Minister that the Tribunal complied with the relevant principles in any event and did not expose itself to the risk of apprehended bias.
The Minister also submitted that the content of the anonymous allegation, namely, that the applicants were working for cash, was relevant to the genuine temporary entrant criterion which the Tribunal was required to assess, and there was nothing so prejudicial about the information that “a fair-minded lay observer might reasonably consider…is of a kind that might subconsciously affect” the Tribunal’s decision (FSG17 at [42]). The Minister submitted that the Tribunal was not required, and did not attempt, to consciously disregard the anonymous allegation since it was not of such a highly prejudicial nature as in CNY17 or FSG17. Rather, it simply chose to give the allegation no weight, as it was entitled to do, where the weight given to any piece of evidence is a matter open to the Tribunal to determine (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 (Kumar)).
Regardless, the Minister submitted that the Tribunal complied with its proper statutory process, consistent with the approach endorsed in CNY17 to avoid apprehended bias. The Tribunal put the anonymous allegation to the applicants for comment pursuant to ss 359A and 359AA of the Act. The applicants had multiple opportunities to respond to the contents of the allegation, which they did so in writing and in person at the resumption of the Tribunal hearing. Counsel for the Minister further submitted that the Tribunal was not even required to put the contents of the allegation to the applicants, being non-disclosable information exempt from the s 359A requirements pursuant to s 359A(4)(c), but it nevertheless exercised its discretion favourably to the applicants. In the Minister’s view, there was nothing improper about the Tribunal’s approach in this respect.
Further, the Minister submitted that the Tribunal’s reasons are to be read fairly and as a whole without an eye keenly attuned to error (citing Wu Shan Liang at 272). Having put the allegation to the applicants for comment and considered their response, the Tribunal correctly acknowledged this at [31] of its reasons, but decided to place no weight on the allegation for the purpose of assessing the applicants against the genuine temporary entrant criterion on the basis that the allegation was made anonymously and was not supported by verifiable evidence.
The applicants submitted by way of affidavit that, although the Tribunal formally stated it gave no weight to the allegations, it nevertheless went on to cast doubt on their financial integrity based solely on “speculative calculations” and “unsupported assumptions”. The applicant submitted that this “creates an inference that the Tribunal’s decision was in fact tainted by the allegation” noting this was the “very concern raised in CNY17”.
The Court does not agree with the Minister’s submissions. In a sense, it is true that the allegations contained within the anonymous allegation were not of the same magnitude as the prejudicial information considered in the authorities referenced above. However, the principles which arise from those authorities are not limited to like-for-like prejudicial information. The question is whether the material is “of a kind” that could affect the decision (see MBJY cited above at [54] of these reasons). In this vein, in the decision of AWS25 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 869, Judge Ladhams accepted that the extraneous information in that matter was not of the same severity as that considered in cases such as CNY17. Judge Ladhams formed the view that the material before her Honour could not be construed as “highly prejudicial” (at [80]). Nevertheless, the material in that matter was “sufficiently prejudicial that a fair-minded lay observer could not dismiss the possibility that the Tribunal might have been subconsciously affected by the information” (at [83]). The Court also notes Edelman J’s observance in CNY17 that it is not possible to identify “in the abstract” the particular point at which prejudicial material leads to an apprehension of bias (at [101]).
In the Court’s view, the allegations in the prejudicial material were highly prejudicial to one of the material questions before the Tribunal. That is, it went to a mandatory consideration of the applicants’ ability to financially support themselves in Australia. Furthermore, the question is, as is always the case with apprehension of bias matters, whether a reasonable person might consider that the Tribunal might not have brought an independent mind to the task before it, specifically, in this case, whether a reasonable person might consider that the Tribunal did in fact have regard to the prejudicial material, consciously or otherwise, when making findings in respect of a mandatory consideration.
Furthermore, the Court does not agree that the material was relevant and, accordingly, it was open to the Tribunal to simply give it no weight. The Tribunal gave clear reasons for disregarding the material. That is, the allegation was made anonymously and was not supported by verifiable or objective evidence. In the Court’s view, that was the only correct approach to take with respect to that material. Indeed, to place any weight on what was nothing more than unsubstantiated rumour could invite a finding of illogicality. The Tribunal did not simply elect to place no weight on the information. It gave the information no weight because it would have been an error otherwise. Again, though, the question for the Court is whether a reasonable person might think, having said that, the material should have no weight ascribed to it. The Tribunal nevertheless placed weight on the allegation, albeit subconsciously. The Court is satisfied that, having regard to the entirety of the Tribunal’s reasons, a reasonable person would have considered that the prejudicial material alleging the applicant was working for cash did form part of the reason, albeit subconsciously, for finding that the applicants were not able to support themselves on their disclosed financial status.
The Court notes the Minister’s submission that there was a distinction between the Tribunal being ‘not satisfied’ with the applicant’s explanation and, alternatively, making a positive finding to the contrary (citing Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 at [41]). However, the Tribunal’s reasoning reveals a lacuna which could only logically be filled by an acceptance, tacit or subconscious, of the allegations contained in the prejudicial material. The Tribunal’s finding that it was “not satisfied the applicants have provided a satisfactory account of their financial position that has allowed them to live and study in Australia for three years without working” inexorably leads to a conclusion that the Tribunal was of the view they must have been supporting themselves through other means. The only evidence before the Tribunal which would support this is the evidence said to have been disregarded. Put another way, the Tribunal appears to have reached a finding that is only supported by the disregarded prejudicial information.
The Court is satisfied that the ‘double-might’ threshold is reached in this matter. That is, the Court finds that a fair-minded lay observer might find that the Tribunal might have subconsciously had regard to the prejudicial information in making its decision.
For this reason, the Court is satisfied that the Tribunal’s decision is affected by a jurisdictional error.
Ground four
By ground four, the applicants allege that the Tribunal made a jurisdictional error by not considering the study which the applicant had completed during her stay in Australia. However, this ground is clearly at odds with the Tribunal’s reasons.
Plainly, the Tribunal considered the applicant’s studies at [10], [19] and [29] of its decision. The Tribunal noted the applicant had completed a Certificate III and IV in Commercial Cookery and was enrolled at the time in an Advanced Diploma of Hospitality (at [10]). The Tribunal further acknowledged the applicant’s completion and/or enrolment in those courses with reference to her PRISMS record, as well as her intention to complete her last course in October 2021 and her motivations for those chosen studies (at [19] and [29]).
No jurisdictional error arises in respect of ground four.
Ground five
By ground five, the applicants contend that they did not receive a fair decision from the Tribunal.
Counsel for the Minister took the Court through the procedural fairness steps undertaken by the Tribunal and submitted that there is no denial of procedural fairness evident in the Tribunal’s decision. In accordance with its statutory obligations under Division 5, Part 5 of the Act, the applicants were invited to a hearing pursuant to ss 360 and 360A. The applicants were put on notice as to the dispositive issue for the Tribunal to determine, namely, whether the primary applicant intended to remain temporarily in Australia as a genuine student. Further, the applicants were on notice of the dispositive issue by virtue of the delegate’s decision and the Tribunal’s s 359(2) letter. The applicants were given opportunities to respond in writing and to give evidence orally at the hearing with respect to the dispositive issue which the Tribunal was required to determine. In circumstances where the Tribunal hearing was adjourned and resumed at a later date, the Minister submitted the applicant was given ample notice of the new hearing date. The Minister submitted the Tribunal did not fail to comply with its obligations under ss 359AA and 359A in circumstances where those obligations are the subject of the Tribunal’s reasons at [11]-[13] and [20]-[21].
The Court accepts the Minister’s submission that there is no denial of procedural fairness evident in the approach taken by the Tribunal. The Tribunal complied with its procedural fairness obligations under Division 5, Part 5 of the Act, and the applicants were given adequate opportunities to respond to the issues put to them by the Tribunal for determination. Save for the error identified above in respect of its treatment of the prejudicial information, there is nothing in the Tribunal’s decision which suggests the applicants did not receive “a fair decision”.
Ground six
Further to ground five, the applicant contends she was not given a fair opportunity to present oral evidence at the Tribunal hearing.
The Minister submitted that the Tribunal decision demonstrates a clear engagement with a broad range of questions directed to matters which were open to the Tribunal to consider in line with Direction 69. The applicant was given an opportunity to provide meaningful answers to those questions and this is reflected in the Tribunal decision record. In the absence of a full transcript of the Tribunal hearing, the Minister submitted that the Court should accept the Tribunal’s summary as accurate (citing Chhetri v Minister for Immigration [2016] FCCA 490 at [48]).
The Court raised with counsel for the Minister whether this ground should be read as an ‘unreasonableness’ claim in the sense that the Tribunal failed to properly engage with the evidence she had submitted. Counsel for the Minister accepted this contention but submitted in reply that the bar for legal unreasonableness is quite high and it could not be said that the outcome of this Tribunal decision was so unreasonable that another decision-maker could not reach the same outcome.
The Court accepts the Minister’s submissions with respect to this ground and agrees that the applicant was not denied a fair opportunity to present oral evidence at the Tribunal hearing.
No jurisdictional error arises in respect of ground six.
Ground seven
By ground seven, the applicant contends that the substance of the Tribunal decision is “short and void”.
The Minister submitted not only that brevity in itself is not indicative of jurisdictional error (citing Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455 at [19]), but that the Tribunal decision could not be considered short at 16 pages long. The Court agrees with the Minister’s submission that the Tribunal decision is neither short nor “void” and that the decision in fact contains a comprehensive analysis of the applicant’s written and oral evidence.
No jurisdictional error arises in respect of ground seven.
Ground eight
By ground eight, the applicants contend that “substantial justice was not provided”.
The Minister submitted that this ground lacks sufficient particularity to be meaningful and should be dismissed on that basis (citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld by Siopis J on appeal in WZATH v Minister for Immigration and Border Protection [2014] FCA 969). In any event, as covered in the previous grounds, particularly ground five, the Tribunal complied with its procedural fairness obligations.
The Minister further submitted that the Tribunal’s decision was a rational, reasonable and routine merits-based evaluation that was made in the course of public administration (to adopt the language of Logan J in Kumar (at [7]). In Kumar, Logan J went on to say (at [7]):
It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the appellant had put his claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the appellant was a genuine student. They were sufficient unto the day.
Counsel for the Minister submitted that those remarks are apposite in this matter in circumstances where the applicant assured the Tribunal she would return to India upon the completion of her studies in October 2021 and yet remains in Australia almost four years later.
Again, save for the error identified in respect of the Tribunal’s treatment of the prejudicial information, the Court is unable to identify any other absence of “substantial justice” in the Tribunal’s decision or approach.
Further matter raised by the Minister – futility
The Minister further submitted, in both written and oral submissions, that even if the applicant were able to demonstrate any jurisdictional error in the Tribunal’s decision, the Court should exercise its discretion to refuse relief on the basis of futility. In circumstances where the course for which the applicant sought the visa was due to be completed in October 2021, and the purpose of the visa is no longer relevant or applicable, the Minister submitted it would be an exercise in futility to remit this application back to the Tribunal for redetermination (citing Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedcFamC2G 921 at [69] (Nguyen)).
Putting to one side the differences between the medical treatment circumstances in Nguyen and the applicant’s study plans in this matter, the Court accepts there is some force to the Minister’s submission in this respect. It is true that the course for which this particular visa was sought should have been completed by now. However, there is no evidence before the Court as to whether the applicant’s visa difficulties led to an enforced hiatus in the applicant’s studies. Furthermore, the Court is not satisfied that a successful outcome in this matter could “produce no foreseeable consequences for the parties” (Williams v The Commonwealth (2012) 248 CLR 156 at [327]. It is well established that once a breach of procedural fairness is established, an applicant is entitled to relief unless the breach could have had no bearing on the outcome (VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [82] and the authorities cited therein). Once such a breach is established, “it cannot normally be said… that affording such an opportunity was futile” (Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [85] per Kirby J).
Ultimately, the question of whether the applicant meets the requirements for the grant of the visa is a matter for the Tribunal. The Court does not agree that it would be futile to remit the application to the Tribunal.
CONCLUSION
The applicants have succeeded on their application.
Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 20 June 2025
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