Priya v Minister for Immigration and Citizenship [2025] FedCFamC2G 952

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (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] HCA 24; (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 [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. 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.

1. 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.
2. 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.
3. 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.
4. 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'

1. 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.
2. 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.
3. 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] HCA 20; (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).
4. Two steps flow from that test (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (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]).
5. 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] HCA 30; (1994) 181 CLR 41 at 74 per Deane J, cited in CNY17 at [134] per Edelman J).
6. 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.

1. 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]).
2. 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 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437; (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]).
3. 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.

1. 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.
2. 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] FCAFC 16; (2020) 274 FCR 646 (Kumar)).
3. 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.
4. 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.
5. 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".
6. 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]).
7. 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.
8. 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.
9. 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.
10. 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.
11. For this reason, the Court is satisfied that the Tribunal's decision is affected by a jurisdictional error.

1. 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.
2. 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]).
3. No jurisdictional error arises in respect of ground four.

1. By ground five, the applicants contend that they did not receive a fair decision from the Tribunal.
2. 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].
3. 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".

1. Further to ground five, the applicant contends she was not given a fair opportunity to present oral evidence at the Tribunal hearing.
2. 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]).
3. 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.
4. 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.
5. No jurisdictional error arises in respect of ground six.

1. By ground seven, the applicant contends that the substance of the Tribunal decision is "short and void".
2. 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.
3. No jurisdictional error arises in respect of ground seven.

1. By ground eight, the applicants contend that "substantial justice was not provided".
2. 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.
3. 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.

1. 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.
2. 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

1. 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)).
2. 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] HCA 23; (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] HCA 62; (2004) 221 CLR 1 at [85] per Kirby J).
3. 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.

1. The applicants have succeeded on their application.
2. 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.