Baloch v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1023
Federal Circuit and Family Court of Australia
(DIVISION 2)
Baloch v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1023
File number: MLG 2699 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 8 December 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to “give proper or realistic consideration” to the applicant’s claims – whether the Tribunal breached s 360 of the Migration Act 1958 (Cth) and, by doing so, failed to afford the applicant procedural fairness – whether the Tribunal’s decision is affected by apprehended bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360 and 476
Migration Regulations 1994 (Cth), cl 572.223 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission: 26 September 2022 Date of hearing: 31 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms K Hooper Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2699 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMAD ISSA BALOCH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 28 January 2022) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of the United Kingdom (Court Book (“CB”) 1, 3 & 47). He first arrived in Australia in May 2012 as the holder of a working holiday visa (CB 45; Supplementary Court Book (“SCB”) 2).
On 30 May 2013, the applicant was granted a second working holiday visa. On 1 December 2014, the applicant was granted a student visa (SCB 1) and completed a Certificate IV in Frontline Management from 24 April 2015 to 27 October 2015 (CB 43).
On 13 April 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (being the visa the subject of this proceeding) (CB 1-9). Annexed to that visa application were a variety of supporting documents (including the applicant’s curriculum vitae, educational records, Overseas Student Confirmation-of-Enrolment forms (“CoEs”) and a genuine temporary entrant statement) (CB 10-21).
On 10 May 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant (via email) for more information about his visa application (CB 25-33) (including information addressing the genuine temporary entrant criterion set out in cl 572.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 31).
On 31 May 2016, the applicant provided additional documents to the Department (via email) in support of his visa application (CB 34).
On 5 July 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 41-46). The delegate was not satisfied that the applicant “genuinely intended to stay in Australia temporarily” and, as such, did not meet cl 572.223(1)(a) in Schedule 2 of the Regulations (CB 45).
On 18 July 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 47-48). In that application, the applicant appointed a registered migration agent as his representative (the “representative”) (CB 48). The applicant also gave the Tribunal a copy of his passport (CB 49).
On 11 October 2017, the Tribunal invited the applicant (through his representative) to attend a hearing before it scheduled for 16 November 2017 (CB 58-71). That letter also asked the applicant to provide additional information, as follows (CB 61):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
In response, the applicant provided additional documents in support of his application, comprising flight details for the applicant, educational records and CoEs (CB 77-119).
On 16 November 2017, the applicant appeared at the scheduled hearing before the Tribunal to give evidence and present arguments. He also gave the Tribunal additional financial documents and a letter confirming his employment. His representative did not attend that hearing (CB 120-122).
The Tribunal made an oral decision at that hearing (on 16 November 2017) affirming the delegate’s decision refusing to grant the applicant the visa (CB 124)
On 18 November 2017, the applicant asked the Tribunal to provide a written statement of its decision and reasons (CB 128).
On 3 December 2017, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 132-135). A copy of those reasons was provided to the applicant’s representative (via email) on 4 December 2017 (CB 129-131).
On 11 December 2017, the applicant sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
On 28 January 2022, an amended application was filed on behalf of the applicant.
The TRIBUNAL’s DECISION
The Tribunal’s written statement of decision and reasons in this matter is four pages long and spans 35 paragraphs.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for the visa on 13 April 2016 and that a delegate of the Minister had refused to grant the applicant that visa on 5 July 2016. The Tribunal explained that the delegate was not satisfied that the applicant met the “genuine temporary entrant criteria”. The Tribunal also noted that it had made an oral decision at the hearing before it on 16 November 2017 (at [1]-[4]).
The Tribunal then explained that, in order to satisfy cl 572.223 in Schedule 2 of the Regulations, an applicant must be both a genuine student (by following an academic pathway leading to an identified academic outcome) and a genuine temporary entrant (by genuinely intending to remain in Australia temporarily) (at [6]-[8]).
The Tribunal outlined that, in considering whether an applicant is a genuine temporary entrant, it was required to have regard to Ministerial Direction No. 53 (the “Direction”). The Tribunal acknowledged that the factors set out in the Direction were “not intended to be used as a checklist” but should instead guide decision-makers when findings are made about whether an applicant is a genuine temporary entrant. The Tribunal also identified that the Tribunal would “take a fresh look” at the applicant’s visa application (at [9]-[11]).
The Tribunal noted that the applicant had told the Tribunal that he had read and understood the delegate’s decision. The Tribunal explained that the delegate’s decision referenced issues outlined in the Direction and the applicant was thus on notice of those issues. Further, it was noted that the hearing invitation letter sent to the applicant by the Tribunal also put the applicant on notice that the Tribunal would assess whether the applicant was a genuine temporary entrant and asked the applicant to provide a statement addressing the factors set out in the Direction (together with any other evidence) at least one week prior to the Tribunal hearing (at [12]-[15]).
The Tribunal then stated:
16.You provided a document dated 22 May 2016 which you had provided with your application. It did not address all the issues in Direction no 53 as requested however at today’s hearing you answered a number of questions that went to those issues.
The Tribunal confirmed that the applicant had provided evidence of enrolment in two courses (a Certificate III in Heavy Vehicle Mechanical Technology and a Certificate in Automotive Mechanical Diagnosis), noting that the applicant was granted those enrolments one day prior to the Tribunal hearing (at [17]-[18]).
The Tribunal then explained that the applicant had provided evidence of past studies, including a Certificate IV in Frontline Management (being a six month course), a Diploma of Automotive Technology (being a five month course) and a Diploma of Leadership and Management (being an 11 month course). The Tribunal noted that the applicant had completed less than two years of study in a three year period and that, prior to being granted his first student visa, the applicant had held two working holiday visas (at [20]-[21]).
The Tribunal continued:
23.You say you decided to study, I’m not sure why but you say you wanted to get formal qualifications.
The Tribunal identified that the applicant had been granted Certificates III and IV in Automotive Mechanical Technology “by recognition of prior learning without having to do any studies” and that the applicant had worked as a mechanic for seven years prior to arriving in Australia (at [24]-[25]).
The Tribunal explained that the applicant had agreed that, with approximately 10 years of work experience as a mechanic, the proposed automotive diagnosis courses were not going to provide the applicant with any knowledge that he did not already have (at [26]).
The Tribunal continued:
27.It is now over 3½ years since you applied for your first student visa and you now wish to stay longer and study courses you enrolled in yesterday. The Tribunal does not believe you have provided any evidence that your proposed courses increase your prospects of employment which leads the Tribunal to find you are not following a set path of academic progress as a genuine student - but are using the student visa programme to maintain residence in Australia.
The Tribunal noted that, when asked why he did not complete his studies in his home country, the applicant said that he was “used to studying in Australia” and wanted to finish his studies and return home. Noting that the applicant has two children in the UK and family in Afghanistan, the Tribunal accepted that the applicant had “some incentive” to return home but considered that the applicant appeared “settled in Australia” and had four years of working history as a mechanic in Australia (at [28]-[29]).
The Tribunal continued:
30.While you say it is your intention to return home, having been here for over 5 years, you now seek to remain another couple of years to study courses the Tribunal believes add little value to your future.
31.Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history
32.As noted in the primary decision, your previous student visa was current until 5 April 2015. You enrolled in your course shortly before that on 3 March 2016 and lodged this visa application on 4 April. This indicates your motivation was to be granted a visa rather than a desire to study and that view is strengthened by the fact that today you have today come to the hearing and provided evidence of enrolments you obtained yesterday.
Ultimately, having considered the applicant’s “circumstances as a whole”, the Tribunal was not satisfied that the applicant was a genuine student who genuinely intended to stay in Australia temporarily. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [33]-[35]).
Application to this Court
The amended application for review (filed on behalf of the applicant on 28 January 2022) contains one “particularised” ground of review, as follows:
Ground 1: The Tribunal failed to give genuine, proper or realistic consideration to the claims of the applicant
1.The Tribunal misapplied, misunderstood or misconstrued the relevant statutory provisions; or failed to give genuine, proper or realistic consideration to the claims of the applicant, or the findings by the Tribunal lack evident and intelligent justification and as a consequence, the Tribunal constructively failed to review the applicant’s claims, giving rise to jurisdictional error. The Tribunal fell into jurisdictional error at [27] by finding that “[i]t is now over 3 1/2 years since you applied for your first student visa and you now wish to stay longer and study courses you enrolled in yesterday. The Tribunal does not believe you have provided any evidence that your proposed courses increase your prospects of employment which leads the Tribunal to find you are not following a set path of academic progress as a genuine student - but are using the student visa programme to maintain residence in Australia.”
The amended application also included four pages of information which, in effect, read like submissions. The Court does not consider it necessary to reproduce the “particulars” therein in full. However, the Court notes that the following paragraphs appear to raise a further “ground” or issue for the Court to consider:
Jurisdictional Error: Denial of procedural fairness
hh)By virtue of section 360 of the Migration Act 1958 (Cth), the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. As the purpose of section 360 is to provide the applicant with an opportunity to present evidence and arguments, the obligation to invite the applicant to attend must be meaningful in the sense that it must provide the applicant with a real chance to present their case;
jj)In light of the findings by the Tribunal, there was a want of procedural fairness in the manner in which the Tribunal conducted the hearing of the application, including in relation to the matters, which preceded and occurred after the hearing. In light of the Tribunal’s analysis of the facts and circumstances relating to the application for merits review, the Tribunal failed to bring an active intellectual process to, and gave genuine consideration to the matter.
On 22 August 2018, procedural orders were made by Registrar Allaway (in the then Federal Circuit Court of Australia) giving the applicant an opportunity to file any amended application, a supplementary court book and written submissions.
As outlined above, an amended application was filed on behalf of the applicant on 28 January 2022. Written submissions were also filed on behalf of the applicant on 21 February 2022. Written submissions in reply were filed on behalf of the Minister on 11 April 2022.
The materials before the Court thus include the applicant’s affidavit affirmed and filed on 11 December 2017, the affidavit of Thomas John Pattinson affirmed and filed on 20 January 2022 (annexing a transcript of the Tribunal hearing) (the “Pattinson affidavit”), a Court Book numbering 135 pages (marked as Exhibit 1), a Supplementary Court Book numbering two pages (marked as Exhibit 2), the amended application filed on behalf of the applicant on 28 January 2022, written submissions filed on behalf of the applicant on 21 February 2022 and written submissions filed on behalf of the Minister on 11 April 2022.
Directions hearing
The matter was initially listed for a final hearing before this Court on 26 April 2022.
On 14 April 2022, counsel for the applicant emailed chambers (and the Minister) advising as follows:
I write to inform the Court that I am no longer acting in this matter.
I wish the Court and my friend for the Minister well.
On 22 April 2022, the applicant emailed chambers to advise that his legal representative was “no longer acting” for him and requested an adjournment. That email correspondence read as follows (without alteration):
With reference to the court file number mentioned in the subject, due to unforeseen circumstances I need to request for another date for my hearing. My case ref, MLG2699/2017 which is scheduled on 26th April 2022 at 2.00PM. Unfortunately, my previous legal representative has withdrawn himself from the court, he doesn't want to represent me in this case.
I don’t have a legal representative at the moment and it is not possible to find a barrister to represent me in court during this short period of time.
I really apologise for the inconvenience, but it is a humble request please extend my hearing date so that I can find a legal representative who can present my case to you.
I would really appreciate your help in this matter.
The Court notified the parties that the final hearing of the matter (scheduled for 26 April 2022) would be changed to a directions hearing to allow the Court to have a conversation with the parties about the applicant’s request for an adjournment and to discuss the proposed timeframe for a rescheduled hearing.
The applicant appeared at the directions hearing on 26 April 2022 via video link. Ms Harradine appeared on behalf of the Minister (also by video link). At that directions hearing, the Court discussed with the applicant what had occurred with his previous legal representative. The applicant explained to the Court that counsel had contacted him in January 2022 and offered to represent him. The applicant told the Court that counsel had subsequently told him that he would no longer act for him in this matter and that the applicant should “get a second opinion”.
The Court asked Ms Harradine if she had been contacted by counsel for the applicant at any point or if she had been given any indication that he would no longer be acting in the matter. Ms Harradine advised the Court that she had first been contacted by the applicant’s former counsel in February 2022 (when she was served with an unsealed copy of an amended application). She explained that she did not hear anything further from him until 14 April 2022 (when she was copied in to the correspondence sent to the Court advising that he was no longer acting).
The applicant asked the Court for “more time” because the lawyers he had contacted to assist him had requested between twelve and fifteen thousand dollars (upfront) to take his case and he needed additional time to secure alternate representation.
The Minister did not oppose the adjournment request.
The Court determined that in circumstances where the applicant’s representative had removed himself from the matter (seemingly with no notice to the applicant and very close to the hearing date), it was indeed appropriate to adjourn the matter to give the applicant an opportunity to obtain new legal representation.
Final hearing
The matter came before the Court again on 31 August 2022 for a final hearing. At that hearing, the applicant appeared (via video link) without legal representation, but with the assistance of Mr Khan (who, with the Minister’s agreement, acted as a McKenzie friend). Ms Hooper of counsel appeared on behalf of the Minister (also via video link).
At the hearing, the Court confirmed that it had received email correspondence from the applicant the day before (being 30 August 2022), attaching written submissions. Ms Hooper did not object to the applicant being granted leave to rely on those submissions (tendered and referenced as Exhibit 3). The Court made an order granting leave in that regard.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that when he appeared before the Tribunal, the Tribunal member came into the room and pushed a paper file in front of him and said “what is this?”. The applicant stressed that the Tribunal member told him that “the paperwork was supposed to be provided to the Tribunal seven days prior to the hearing but was only received that morning”.
The applicant also explained that he thought the Tribunal member appeared to “have already made up his mind”. In this regard, the applicant emphasised “the way the member was talking” to the applicant and “treating” him. The applicant then gave examples of the Tribunal member “asking questions but stopping [the applicant] half way through his answer saying “I already know this, I need to know something else”. The applicant noted further that he “was asked twice if he had a girlfriend and was asked to explain why he did not have a girlfriend”. The applicant also explained that he had been asked about “what kind of car he drove” and other seemingly “irrelevant questions”. The applicant stressed that he was continually interrupted by the Tribunal member and was not given a chance to answer the Tribunal member’s questions.
Given the concerns raised by the applicant, the Court gave the parties an opportunity to file further written submissions addressing the issue of apprehended bias. The applicant filed written submissions on 20 September 2022 and the Minister filed submissions in reply on 26 September 2022. The Court will consider this issue below. The content of these final submissions are also canvassed below.
Consideration
Amended grounds of review
Noting that the applicant was unrepresented, the Court has reviewed the amended application and relevant “submissions” as broadly as possible and considers there to be two core issues that require consideration:
(1)whether the Tribunal failed to “give genuine, proper or realistic consideration” to the applicant’s claims; and
(2)whether the Tribunal breached s 360 of the Act and, by doing so, failed to afford the applicant procedural fairness.
The Minister took a similar approach in written submissions filed in this Court on 11 April 2022.
Issue 1: whether the Tribunal failed to “give genuine, proper or realistic consideration” to the applicant’s claims
In relation to issue 1, written submissions filed on behalf of the applicant (on 21 February 2022) take issue with the Tribunal’s findings at [27] of its written reasons. Those findings provide:
27.It is now over 3½ years since you applied for your first student visa and you now wish to stay longer and study courses you enrolled in yesterday. The Tribunal does not believe you have provided any evidence that your proposed courses increase your prospects of employment which leads the Tribunal to find you are not following a set path of academic progress as a genuine student - but are using the student visa programme to maintain residence in Australia.
The Court notes that when conducting a review, the Tribunal is required to give “proper, genuine and realistic consideration” to all claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
Unfortunately, the applicant’s written submissions dated 29 March 2022 (but initially filed on behalf of the applicant by counsel acting at that time on 21 February 2022) do not provide any detail about what claims or evidence were overlooked by the Tribunal. This is not particularly helpful and makes it difficult for the Court to properly assess the applicant’s concerns.
Having reviewed the Tribunal’s decision in detail, it is evident that the Tribunal took into account the applicant’s evidence that he had:
(a)told the Tribunal that he wanted to get formal qualifications (noting, however, the Tribunal’s finding that it was not clear why the applicant wanted to do so) (at [23]);
(b)obtained two certificates (in automotive mechanical technology) through recognition of prior learning (that is, without having to undertake any studies) (at [24]);
(c)gained seven years of experience working as a mechanic prior to his arrival in Australia and, with the work experience gained in Australia, the applicant had 10 years of experience (at [25]-[26]); and
(d)agreed with the Tribunal that the proposed courses of study in automotive diagnosis would not provide the applicant with knowledge he did not already have from his 10 years of work experience (at [26]).
Noting that the applicant has not clarified what “evidence” or “claims” have been overlooked by the Tribunal, the Court is satisfied that, based on the assessment detailed by the Tribunal, the Tribunal did consider the applicant’s claims and all of the evidence before it in relation to the applicant’s proposed courses of study.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal breached s 360 of the Act and, by doing so, failed to afford the applicant procedural fairness
The applicant here claims that there was “want of procedural fairness in the manner in which the Tribunal conducted the hearing”, including the “matters which preceded and occurred after the hearing”. The applicant, in this regard, references s 360 of the Act and stresses that the Tribunal is obliged to provide the applicant with a “real chance to present [his] case”.
Once again, no detail has been provided as to what the applicant is referring to when he references “matters which preceded and occurred after the hearing”. However, in relation to whether the Tribunal complied with its obligations under s 360 of the Act, the Court finds as follows.
At the time of the Tribunal’s decision (being 16 November 2017), s 360 of the Act provided as follows:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court notes that the issue before the Tribunal in this matter was whether the applicant satisfied cl 572.223 in Schedule 2 of the Regulations – specifically, whether the applicant was a genuine student and a genuine temporary entrant. This was the same issue that arose when the matter was before the Department and the reason for the delegate’s refusal of the visa (such that no error of the kind in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 arises here).
The Tribunal here invited the applicant (through his representative) to attend a hearing before it, scheduled to take place on 16 November 2017 (CB 58-71). The invitation letter also asked the applicant to provide the following information to the Tribunal (CB 61):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
As outlined above, that invitation letter also put the applicant on notice that the Tribunal would assess whether the applicant “genuinely intended to stay in Australia temporarily” and invited the applicant to provide a written statement addressing the genuine temporary entrant criteria (by reference to the Direction (a copy of which was provided to him with the Tribunal’s correspondence)) (CB 67-71).
The applicant provided material to the Tribunal in response to that invitation and the Tribunal acknowledged receipt of that information, as follows:
16.You provided a document dated 22 May 2016 which you had provided with your application. It did not address all the issues in Direction no 53 as requested however at today’s hearing you answered a number of questions that went to those issues.
The Tribunal also questioned the applicant at the Tribunal hearing about various items set out in the Direction and had regard to the applicant’s oral evidence.
The Court is satisfied that the Tribunal complied with its obligations under s 360 of the Act and that the applicant was afforded procedural fairness.
No error arises in relation to issue 2.
Otherwise
Apprehended Bias
As outlined above, the applicant raised concerns before this Court (at the final hearing) about “the conduct of the Tribunal member”. In effect, the applicant claimed that the member was biased or had “already made up his mind”. The applicant emphasised that he was “unable to answer the Tribunal member’s questions and was continuously interrupted by the Tribunal member”.
Ms Hooper (for the Minister) submitted, in response, that there “is nothing in the transcript to suggest that the Tribunal member had been interrupting the applicant or that he was aggressive in any way”. Further, Ms Hooper submitted that the transcript as a whole did not identify anything which might give rise to a claim of apprehended bias and that isolated occasions of “frustration” do not amount to bias.
Relevant principles
The Full Court of the Federal Court has recently set out the applicable principles in relation to apprehended bias in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 (“Chen”) as follows:
35.The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (Allsop CJ, Kenny and Griffiths JJ) citing R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288; Ebner; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283.
36. In ALA15 at [36] the Full Court explained that:
…at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii)there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
37.The rule in relation to apprehended bias applies both in the context of curial and non-curial decision-making. When applied outside the judicial system, the rule “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings”; and “regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: Refugee Review Tribunal, Re: Ex parte H [2001] HCA 28; 179 ALR 425 at [5] (Gleeson CJ, Gaudron and Gummow JJ).
38.One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:
…must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).
39.In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:
(a)the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];
(b)specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];
(c)saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:
(i)they have an opinion on the relevant aspect of a matter in issue;
(ii)they will apply that opinion to the matter in the case; and
(iii)they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and
(d)having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].
40.The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as Kirby J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [90], the test:
…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.
(Citations omitted.)
An allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved. More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion: Jia Legeng at [69] and [71]-[72] (Gleeson CJ and Gummow J).
…
50.The Tribunal’s inquisitorial role may involve robust and forthright testing of a visa applicant’s claims, and such testing will not of itself sustain a finding of apprehended bias: SZRUI at [24] (Flick J, with whom Allsop CJ agreed); and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias. Generally such behaviour simply forms part of the factual matrix in relation to which any question of apprehended bias is to be assessed, but in some cases such behaviour may show bias or give rise to a reasonable apprehension of bias: SZRUI at [91] (Robertson J with whom Allsop CJ agreed) citing Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at 10-11 (Lockhart J).
51.We have considered each of the instances of conduct by the Tribunal member on which the appellant relies, but our decision does not turn on a particular instance or instances. Rather, considering the Tribunal member’s conduct during the hearing in totality, and looking at the evidence cumulatively, we are satisfied that a fair-minded and appropriately informed lay observer might reasonably apprehend that the member might not bring an impartial mind to the question as to whether the appellant’s incorrect answer in his 2018 visa application was purposefully false. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Watson at 259 (Barwick CJ, Gibbs and Mason JJ (as their Honours then were), and Stephen J) citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ). What strikes us when listening to the audio recording is that the Tribunal member’s conduct in the hearing crossed the line articulated in Ebner and the other authorities to which we have referred. In our respectful view the primary judge erred in finding otherwise.
Parties’ written submissions
As outlined above, the parties provided further written submissions addressing the issue of apprehended bias (as relevant to the Tribunal member’s approach and conduct in this matter).
By reference to the audio recording of the Tribunal hearing (which the Court has reviewed) and the transcript of the Tribunal hearing (annexed to the Pattinson affidavit which the Court has also reviewed), the applicant identified various “points in time during the Tribunal hearing” where he claims that the Tribunal member’s conduct (considered in context and cumulatively) “establishes apprehended bias”.
The Minister, in turn, prepared a table of the applicant’s claims in this regard and the Minister’s responses. That table provides as follows:
No: Time: Applicant’s allegation of Tribunal’s conduct giving rise to apprehended bias Minister’s response 1. 01:20 Question is asked why you think your visa has been refused.
I tried to explain but was immediately interrupted and stopped.
This is transcript page 5, line 15.
The applicant at approximately 01:20 misunderstands the Member’s question, which is seeking to gauge whether the applicant understands/is able to comprehend the delegate’s reasons, not calling for the applicant to refute or respond to the delegate’s reasons. The Member redirects the applicant for the purpose of having him address the question asked of him. This is not evidence of apprehended.
There is also no logical connection between this inquiry and any feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 345[8]).
2. 05:30 Member is angry because he didn’t get the document on time, he threw the file in front of me and said what is this?
(How can you make the right decision when you are under influence of anger?)
This is transcript page 7, at the top of the page.
There is no evidence whatsoever that the Member threw a file down. The audio recording does not support this allegation.
The Member did raise with the applicant that the Tribunal had been provided with documents on the day of the hearing and not 7 days prior as requested in the hearing invitation at CB 60. This is not evidence of predetermination. At its highest, the Member displays irritation at being provided with a ‘wagon’ (or perhaps ‘swag’) of documents.
There is no logical connection between this inquiry and any feared deviation from the course of deciding the case on its merits (Ebner at 345[8]).
The Member's brief display of irritation, if it can be described as such, is not evidence of bias: see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 (“VFAB”) at 126-127[81].
3. 20:01 Member’s way of questioning and tone of voice changed to words aggression which made me under pressure and caused confusion and fright. This is transcript page 12, the top half of the page.
The Member’s tone is even and temperate.
The audio recording does not evidence aggression. The applicant’s responses are lengthy and detailed. There is no evidence of confusion or fright.
Furthermore, even if the Member’s tone is regarded as firm or harsh at any point, this of itself is insufficient to give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J, cited by Flick J in SZRUI v Minister for Immigration [2013] FCAFC 80 at [32].
4. 24:05 Member is remarking that I don’t believe that means he has made up his mind without examining all the facts presented in front of him. This is transcript page 14 line 10.
The Member is (appropriately) putting to the applicant that he is not sure he believes particular evidence.
In applying the test for apprehended bias, it is necessary to consider the statutory context in which the decision is made: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 153-154[58]. The statutory regime (s 360) obliged the Tribunal to invite the applicant to give evidence and present arguments on the issues arising in relation to the review: see, generally SZBEL v Minister for Immigration Multicultural and Indigenous Affairs (2006) 228 CLR 152; SZRUI at [27] (Flick J).
See also Minister for Immigration and Citizenship v MZXPA [2008] FCA 185; (2008) 100 ALD 312 at [13]-[14]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at 990[30].
5. 26:35 Member is laughing why the legal aid is not here to represent me. This is transcript page 15.
The Member inquires as to why the applicant’s migration agent is not present. There is no evidence of laughter on the audio recording although there is perhaps an intake of breath type of noise made by the Member after the words ‘why not’ (transcript page 15.15). This inquiry is not evidence of apprehended bias and has no apparent connection to the outcome of the review.
6. 29:45 Member starts making fun of the situation without considering the difference between qualification applicant has intent to study. This is transcript page 17.
The Minister repeats the response at row 4 above. The Member is traversing with the applicant his concerns as to the evidence given. Whilst the questioning is more direct at this (later) point in the hearing, ‘robust and forthright testing’ of an applicant’s claims by the Tribunal does not sustain a finding of apprehended bias: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
at [17] (Barker J); SZRUI at [33] (Flick J).
7. 30:10 Member is Mocking and saying it’s pointless exercise to study after10 years of experience. Member is in no position t make this call as he is not an expert in the automobile industry. This is transcript page 17.
The first respondent refers to and repeats his response to row 6 above. That the applicant disagrees with the proposition that the qualification is not of benefit to the applicant given his 10 years’ experience in the automotive industry is not evidence of apprehended bias on the part of the Member. Direction 53 obliged the Member to consider the potential value of the course to the applicant’s future: CB 70.
8. 31:21 Member contemplating what defended might have planned. This Attitude of the member shows bias and that he has made up his mind against the applicant. This is transcript page 17, the final complete paragraph.
This part of the applicant’s complaint is not clear. This section of the audio recording provides no support for the allegation of apprehended bias.
9. 33:20 Member’s Questing spending behaviour has nothing to do with the application. This is transcript page 18, halfway down the page.
This line of inquiry (financial circumstances in Australia) was a relevant aspect of the Member’s consideration of the applicant’s circumstances in his home country (see Direction 53 CB 69[9](c) ‘Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country.
This may include consideration of the applicant’s circumstances relative to the home country and to Australia’) and also consideration of the applicant’s circumstances in Australia generally.
10. 39:10 Member questioning the nature of the business of the applicant’s employer which has nothing to do with the study Visa. This is transcript page 21, halfway down the page.
It appears that the Member has accessed the website of the employer and is reading from it (see final line on page 20 and first line on page 21).
The Member’s questioning concerns the nature of the work experience the applicant had gained in Australia (of relevance to the value of the course to the applicant’s future). In any event, the particular comment complained of (at 39.10) is irrelevant to the decision under review; as the Member remarks at line 15, ‘but anyway that’s uh, interesting’. It is a point of interest to the Member but nothing more.
11. 46:50 Member is saying unusual college unusual course questioning legitimacy of the institute without any ground of proof. This is transcript page 24 from line 5 and is a mere aside by the Member ‘[u]nusual course, unusual college, but anyway’ of no relevance to the disposition of the review. There is no evidence of questioning of the legitimacy of the institute. Court’s Determination
As noted above, when assessing whether there is evidence of apprehended bias on the part of the Tribunal member, the Court has read the transcript of the Tribunal hearing (annexed to the Pattinson affidavit) and listened to the audio recording of the Tribunal hearing at the time codes referenced by the applicant (and as addressed above by the Minister).
Initially, the Court was concerned the Tribunal member’s approach in this matter was unusually “robust”. Having listened to the audio recording of the Tribunal hearing, it is clear that there are certainly “moments in time” where the Tribunal member interrupts or speaks over the applicant and asks oddly rhetorical questions. The Tribunal member also appears, at times, to be irritated by responses provided by the applicant.
In that context, the question for this Court, applying the principles outlined in Chen is whether the Tribunal member’s conduct throughout the hearing is evidence of conduct that “crosses the line”.
Having now reviewed and listened to the materials before it, the Court has determined that, while the Tribunal members approach in this matter is not one that this Court would adopt, that approach does not evidence a failure of engage objectively with the evidence. Nor is it reflective of a closed mind.
As correctly submitted by the Minister, brief displays of irritation or even rudeness (of the sort clearly seen in this matter) do not in themselves amount to bias on the part of the Tribunal: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at 126-127[81]. Further, as outlined above in the relevant passages extracted from Chen, the Tribunal (given the inquisitorial nature of the proceedings) may employ a “robust and forthright testing” of evidence given by an applicant and such testing will not, in and of itself, be enough to sustain a finding of apprehended bias: Chen at [50] (citing SZRUI at [24]).
As in Chen, the Court has considered each of the instances of conduct by the Tribunal member on which the applicant relies in advancing an argument that the member was biased. However, the Court’s decision does not turn on a particular instance or instances. Overall, having considered the Tribunal member’s conduct during the hearing in totality, and having looked at the evidence cumulatively, this Court is satisfied that a fair-minded and appropriately informed lay observer would not reasonably apprehend that the member in this matter brought a closed mind to the questions that the member was required to assess.
Again, to paraphrase the approach adopted in Chen, what strikes the Court when listening to the audio recording is that the Tribunal member’s conduct throughout the Tribunal hearing, while arguably “blunt”, does not cross the line articulated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 and the other authorities referred to in Chen. The conduct seen here does not rise to the level required for the Court to find that the decision is affected by apprehended bias.
No error arises in this regard.
Conclusion
The amended application (filed on 28 January 2022) and three sets of submissions (filed either by or on behalf of the applicant) have failed to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 December 2022
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