Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1608

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).

1. 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.

1. On 31 July 2025, the Minister filed an outline of written submissions and relied on those submissions at the adjourned hearing.
2. 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]).
3. 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.
4. 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]).
5. 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.
6. 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.
7. 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] FCA 317; (2013) 212 FCR 99 at [111]).
8. 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] FCAFC 146; (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.
9. 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] FCA 872; (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]).
10. 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.

1. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

1. 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.
2. 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)).
3. 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.
4. 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.

1. 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.
2. 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.
3. 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.

1. 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).

1. 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.

1. 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).

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.

1. 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.
2. 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.

1. 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.
2. 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'.

1. 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.

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.
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.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.