Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1267
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267
File number: PEG 200 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 22 November 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa (class TU) (subclass 500) refusal – whether reasonable apprehension of bias exists – application upheld. Legislation: Migration Act 1958 (Cth) ss 46(1A), 41(2)(a), 359(1)(a), 359A, 359A(1)(b), 359A(1)(c), 360(1).
Migration Regulations 1994 (Cth) cl 500.212A, 500.611(2)(b).
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Charisteas v Charisteas [2021] HCA 29
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Fox v Percy [2003] HCA 22
Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2004] FCA 1537
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Kwan v Kang [2003] NSWCA 336
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17.
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546,
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZHKA v Minister for Immigration and Citizenship (2008) 249 ALR 58; [2008] FCAFC 138;
SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109
SZNVM v Minister for Immigration and Citizenship [2010] FCA 261
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 87; 131 FCR 102
WZAVC v Minister for Immigration and Border Protection [2017] FCCA 314
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 15 November 2024 Date of hearing: 8 November 2024 Place: Perth Counsel for the Applicant: Mr Stagliorio Solicitor for the Applicant: Mr Northam (Northam Lawyers) Counsel for the First Respondent: Ms McKay Solicitor for the First Respondent: Ms Ismailjee (Sparke Helmore Lawyers) Solicitor for the Second Applicant: Submitting appearances, save as to costs. ORDERS
PEG 200 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANMOL JAGGI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
3.The application is upheld.
4.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 15 November 2023.
5.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the Applicant’s application according to law.
6.The First Respondent pay the Applicant’s costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
INTRODUCTION
This an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) delivered ex tempore on 8 May 2024 with written reasons provided on 29 May 2024. The Tribunal affirmed the decision made by a delegate of the Minister for Home Affairs (“delegate”) on 15 November 2023 to refuse to grant the applicant a temporary Student (class TU) (subclass 500) visa (“visa”) under the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The applicant is a 22-year-old male citizen from India. He first arrived in Australia on 27 April 2023 on a visitor visa.
On 30 August 2023 the applicant applied for the student visa which was refused by a delegate on 15 November 2023. The delegate found the applicant did not satisfy the requirements of clause 500.212A of schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”).
The applicant applied to the Tribunal for a review of the decision on 21 November 2023 within the required time frame.
The applicant attended a hearing before the Tribunal on 8 May 2024. An accredited interpreter fluent in both English and Punjabi attended the hearing. The applicant was represented by a Migration Agent who also speaks Punjabi.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal noted at [7] the applicant was currently enrolled in a Certificate III in Commercial Cookery which he had commenced on 7 October 2023. At the time of the decision, being some six months into the 12 months course, the applicant held a current certificate of enrolment (COE). The Tribunal was satisfied at [8] that the applicant had been attending his course study for these six months based on his COE and course progress report.
At [7], the only determinative issue for the Tribunal was whether the applicant was a genuine temporary entrant (“GTE”) for the purposes of the visa.
The Tribunal noted at [9] that the main reason why the applicant’s visa application had been refused was because the GTE statement provided by the applicant was under a different name and date of birth. The applicant’s Migration Agent stated he mistakenly uploaded the wrong GTE statement, which the Tribunal accepted at [10].
However, the Tribunal stated the applicant still had not provided a signed GTE statement or any other signed statement at [18].
The Tribunal noted its requirement to consider Ministerial Direction No.108 which had formerly been Ministerial Direction No. 69. As the Tribunal did not have a GTE statement, it said it could only consider oral evidence from the applicant at the hearing at [11].
The Tribunal found at [12] that there were no reasonable reasons submitted by the applicant for not undertaking study in his home country.
The Tribunal considered the applicant’s personal ties to his home country and whether they presented a significant incentive for him to return. It noted the applicant’s evidence that his mother and father lived in India and that he had no extended family living in India. The Tribunal also observed at [13] that the applicant’s two sisters both live in Australia as a citizen and permanent resident respectively.
The Tribunal found at [14] that economic circumstances provide a strong incentive for the applicant to remain in Australia and extend his stay for as long as possible. These circumstances included the significant difference in payrates even for an unskilled worker in a kitchen in Australia, compared to the income earning ability in India as a full-time qualified chef.
The Tribunal noted the applicant had done limited research into the benefits of the course for his future at [20] including information on starting a restaurant and how much income this might generate.
At [21] the Tribunal was not satisfied the student visa application was not a preconceived plan to come to Australia on a visitor visa and then lodge a student visa whilst onshore. This would have misled the Department of Home Affairs in the original visa application. The Tribunal stated this concern arose from the applicant’s self-stated desire to study cookery or cooking since the age of 17 but not being able to demonstrate that he had undertaken any research into the cooking course other than a vague answer.
The Tribunal observed the applicant had been given ample opportunity to provide a GTE statement, accepting that there was a genuine mistake by the Migration Agent at the time of application at [23].
The Tribunal was not satisfied at [25] the applicant was a genuine applicant for entry and stay as a student as require by clause 500.212 and therefore affirmed the decision not to grant the applicant the visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an amended application filed on 25 October 2024. They are reproduced below (less particulars):
2. The Tribunal constructively failed to exercise its jurisdiction, thereby making a jurisdictional error.
3. The Tribunal misapplied the relevant legislation, thereby making a jurisdictional error.
4. Due to a reasonable apprehension of bias, the Tribunal made a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
The applicant submitted ground two was that the Tribunal failed to consider an argument that the possible imposition of a visa condition could alleviate its concerns that Mr Jaggi was not a genuine applicant for entry and stay as a student. Counsel for the applicant referenced clause 500.611(2)(b) of Schedule 2 which gave decision-makers a discretion to impose condition 8534 of Schedule 8 to the Regulations on the grant of a student visa, which provided that the “holder will not be entitled to be granted a substantive visa, other than” a protection visa, a subclass 485 visa or a subclass 590 visa, “while the holder remains in Australia”. That constraint was enabled by ss 41(2)(a) and 46(1A) of the Act, which is well-established. The applicant submitted if condition 8534 were imposed on the student visa, he could not stay in Australia permanently.
The applicant submitted that his representative at the hearing, argued in favour of satisfaction of the GTE criterion that, if the Tribunal were of the view that he was attempting to circumvent the student visa program and stay in Australia permanently, a discretion was available to impose a condition on the grant of the student visa, limiting the visa types to which he could be granted while in Australia. That argument was based on the discretion to impose condition 8534. The failure to considerer that argument led to a constructive failure to exercise jurisdiction.
Ground three is an allegation that the Tribunal erroneously treated the provision of a “genuine temporary entrant statement” as a requirement for the grant of a student visa. The applicant referenced the Tribunal at [24]:
… I find in relation to your intention to genuinely stay in Australia temporarily, without evidence to support that claim, you are not a genuine temporary entrant for the purpose of a subclass 500 student visa…
The applicant argued, clearly the words “without evidence” imply that the Tribunal saw that only a GTE statement could amount to evidence of whether the GTE criterion was met, ignoring altogether that the oral testimony given at the hearing was a type of evidence which the Tribunal was bound to consider. Even if the Tribunal treated the oral testimony as evidence, at [24] would still corroborate the argument that the Tribunal saw the need for a GTE statement to be given in addition to any oral evidence.
The fourth ground was the submission that the Tribunal’s decision is vitiated with a reasonable apprehension of bias. The applicant referenced comments made by the Tribunal Member which showed a contempt for the applicant. The applicant further submitted the Member’s tone of voice showed contempt towards the applicant’s Migration Agent and that he had threatened and admonished the Migration Agent.
The applicant referred to the ‘double might’ test in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [56] (Nettle and Gordon JJ), [17] (Keifel CJ and Gageler J), [132] (Edelman J) for apprehended bias which is whether (emphasis added):
… a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide
The applicant stated the test involves: 1) identifying the factor which might have led the Tribunal to make a decision otherwise than on an independent and impartial evaluation of the merits of the case; 2) how that might have occurred. The applicant referenced different factors in support of their contention and submitted that whether or not each factor alone suffices to establish apprehended buas, they do so in the aggregate.
The first factor was the impartiality the Member ‘might’ have displayed by making a purportedly serious and stereotypical perception about applicants from India who deceive. As to ‘how’, the comment displayed pre-judgment in that, the applicant being a part of the group the target of the stereotypical prejudice (Indians who came to Australia to study cookery), the Member ‘might’ have decided the case not on its merits, but on the basis of that pre-judgment about, not to say stereotypical prejudice towards, Indians who came to Australia to study cookery.
The second factor that the Member ‘might’ have displayed a lack of impartiality, by saying that he “know[s] how it works”, and could “see through it”, as he did “nine of these” a week. As to ‘how’, that is also a form of pre-judgment, in that it indicates that the Member ‘might’ have made the decision not on its merits, but on the basis that the Member already “kn[ew] how it works”. The applicant submitted that in other words, he ‘might’ have made his decision on the basis that he already “kn[ew]” from Mr Jaggi’s stereotype whether he was a genuine student.
The third factor is that the Member ‘might’ have displayed a lack of impartiality by going out of his way in taking steps that he was not authorised to take: threatening to refer the Agent to OMARA; re-opening the case after becoming functus officio. The applicant argued that, combined with the Member’s contemptuous tone of voice, indicates that he ‘might’ have made a decision not on its merits, but out of a resolve to teach the Agent a lesson. As to ‘how’, the Tribunal ‘might’ have been distracted from the case, and driven by that impermissible resolve.
The applicant stated that a fair-minded lay observer ‘might’ reasonably apprehend here that the articulated departure/s ‘might’ have occurred, especially given the stereotypical prejudice. Even worse, the prejudice was revealed well before the applicant had finished giving evidence. Errors in the form of apprehended bias are always material citing MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted the second ground suffers from two main flaws. The first is the apparent assumption that by not referring to this argument in the Tribunal’s reasons, the argument was not considered at all. But as is well known, the Tribunal is not obliged “to refer to every piece of evidence and every contention made by an applicant in its written reasons” citing ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 [46]. The absence of any reference in the Tribunal’s reasons to the applicant’s contention, made during the hearing, that an 8534 condition could be imposed does not constitute a reviewable error.
The second flaw is that this argument is premised on a hypothetical. Namely, that the applicant would never have sought to apply for a protection visa had condition 8534 been imposed upon his visa. That there was no evidence before the Tribunal about any protection claims is not determinative (cf. AS [21]). It is not uncommon for a protection visa application to follow the cancellation of a Student (Temporary) (Subclass 500) visa, including where no protection claims were made as part of the student visa application (WZAVC v Minister for Immigration and Border Protection [2017] FCCA 314 at [10(f)-(g)]).
The first respondent contended the crux of ground three is the Tribunal’s repeated references, including in its reasons for decision, to the absence of a GTE statement as a “fundamental document” the Tribunal member needed in order to consider the applicant’s visa application at [23] of the decision record. While a GTE statement is not expressly required by the Regulations, the applicant for a Student (Subclass 500) visa must satisfy the decision-maker that they are a “genuine applicant for entry” under cl 500.212. Here, the applicant provided no such evidence in the form of a GTE statement or otherwise because the applicant’s migration agent filed the wrong GTE statement with the application: (Tribunal decision record at [4], [9], [18], [23]). The Tribunal was left to rely solely on the evidence provided orally at the Tribunal hearing at [11].
The first respondent submitted that as a result, even if the Tribunal erred in describing the GTE statement the applicant had omitted as a “required” part of the visa application (which is not conceded), such error made no difference to the Tribunal’s decision. There is no realistic possibility that the applicant’s decision could have been any different absent this purported error (i.e., had the Tribunal not described the statement as a “required” part of the application), because the applicant supplied no evidence to satisfy the Tribunal that he met the GTE criterion at all. As the Tribunal observed at [22], that was where his application “failed”. The materiality threshold is not met.
The first respondent construes ground four as the applicant’s contention that the Tribunal made a jurisdictional error due to a reasonable apprehension of bias. The applicant relies on statements made by the Tribunal member during the hearing, which he says could make a reasonable layperson apprehend that the Tribunal could have made the decision otherwise than on the merits of the case.
The first respondent outlined the applicable principles of apprehended bias.
An allegation of apprehended bias is serious and must be “distinctly made and firmly proved” (citing Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 (“Jia”) [69] (Gleeson CJ and Gummow J), [127] (Kirby J); R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553).
The test for disqualifying bias in an administrative context is “whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided” (i.e., the “double might” test) (citing Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [57] citing Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 [27]-[30]. See too CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [17]-[18] (Kiefel and Gageler JJ), [56] (Nettle and Gordon JJ), [132] (Edelman J)).
The Court must apply “realistic criteria” in determining whether this threshold has been met; (Kwan v Kang [2003] NSWCA 336 [77] (Sheller, Ipp and Tobias JJA) ; Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2004] FCA 1537 [21] and [54] (Crennan J)).
It is not enough for a reasonable bystander to have “a vague sense of unease or disquiet” (Jia [2001] HCA 17; (2001) 205 CLR 507 [135] (Kirby J)).
The first respondent cited NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] in reference to the Tribunal’s role in this context.
To establish bias sufficient to give rise to jurisdictional error, prejudgment by the decision-maker must be demonstrated in a form “so committed to a conclusion already as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia [2001] HCA 17; (2001) 205 CLR 507 [72] (Gleeson CJ and Gummow J)).
The first respondent submitted that where the basis of an allegation of apprehended bias is the character of exchanges or the terminology employed by the Tribunal Member during a hearing, the following principles apply (citing SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 [30]-[34] (Flick J)):
(a)occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias; (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 87; 131 FCR 102 [81] (Kenny J) (“VFAB”))
(b)if a Tribunal member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but such conduct will not of itself constitute disqualifying bias; (VFAB at [81])
(c)mere insensitivity to an applicant, whether about his or her personal situation or otherwise, will not amount to bias; (VFAB at [81]) and
(d)harsh tones used by a Tribunal member, without more, do not give rise to a reasonable apprehension of bias (SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 [31] (Katzmann J)).
The distinction to be drawn is between an administrative decision-maker who discharges an inquisitorial role being free to question and vigorously test an account of facts advanced by a claimant, and a decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration: (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [33] (Flick J)).
The first respondent noted that where credibility is in issue, Gleeson CJ, Gaudron and Gummow JJ have observed that (citing Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 [30]; quoted in SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 [7]):
… 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.
The first respondent submitted there was no reasonable apprehension of bias.
There is nothing in the Tribunal member’s tone of voice or in the exchanges between the member and the applicant, or his Migration Agent, to demonstrate that “a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument” that might change the member’s mind about the applicant’s claim (Cf. VFAB [81]-[82]).
Importantly, each of the comments made by the Tribunal member about which the applicant complains were directed not at him, but at his Migration Agent (AS[37]-[41]).
Further, given each of the impugned comments by the Tribunal member were directed towards the applicant’s Migration Agent, and about the Migration Agent’s conduct in representing the applicant, it is unclear on what basis the applicant can now submit that the member’s tone of voice on several of those occasions “reveal[ed] contempt for” the applicant (AS [37], [38]).
As to the Tribunal member’s conduct and comments particularised at paragraphs 4(b) and 4(c) of the applicant’s grounds more generally (AS [42]-[43]), none of the comments relied upon demonstrate that the Tribunal was so committed to a predetermined conclusion against the applicant as to be incapable of alteration. Rather, they demonstrate a thorough and vigorous testing of the applicant’s evidence (and lack thereof). The Tribunal properly raised with the applicant the matters that reflected adversely on his credit and brought his account into question, including when compared against the multiple similar applications dealt with by the Tribunal member each week.
None of the Tribunal’s comments particularised by the applicant show that the Tribunal did not bring an impartial mind to the question of whether to uphold the delegate’s decision.
CONSIDERATION
Before the Court, and tendered in evidence, was a copy of the Court Book, a transcript of the Tribunal hearing, as well as an audio file of the hearing itself. The Court has read the transcript and listed to the whole of the sound recording, with particular emphasis on the impugned segments.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].
In ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of the evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] per Nettle J.
A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11] the following was said:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPTD”) at [2] – [7], the High Court had the following to say about jurisdictional error and materiality (citations omitted):
[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".
[3] Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
[4] A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).
[5] Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – "[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute".
[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.
Ground one was not pressed at the hearing.
Given that, it is convenient to deal with ground four next. It is an allegation of apprehended bias. If the ground is made out, jurisdictional error exists without the need to find the error is material: LPTD at [6].
Were the Court considering the allegation of apprehended bias based on the decision record alone, the Court would be unable to find the allegation proved. However, the decision record needs to be read in conjunction with both the transcript of the hearing and sound recording. The Court does not accept that the tone of the voice of the Tribunal member is such that it might in the lead a fair minded lay observer to reasonably apprehend the Tribunal member did not approach the matter with an open mind.
It is clear that the Tribunal member had significant issues with the conduct of the applicant’s Migration Agent as regards his involvement in the matter. This particularly related to the failure of either the applicant (and his Migration Agent in particular in assisting the applicant) to provide a formal Genuine Temporary Entrant (GTE) statement. The delegate had refused the initial application as the applicant’s Migration Agent had uploaded another person’s GTE statement with Mr Jaggi’s application. Further, no GTE statement had been provided to the Tribunal. At page 3, line 95 onwards of the transcript the following appears:
Representative: Yes. I did the error in uploading the wrong GTE so that was the reason…
Member: What do you think is still wrong with the Application?
Representative: Still wrong with the Application?
Member: yeah. What do you think I’m still missing?
Representative: Basically we have to do the assessment for the GTE,
Member: Where’s the GTE Statement?
Representative: Basically I’ve done...
Member: I haven’t got one. I am highly likely to affirm this today (emphasis added). I still don’t have a GTE statement. What are you doing? It’s the main reason the Delegate refused the Visa. You’ve had more than enough time. Have you sent me a GTE statement that I haven’t got?
Representative: No, No.
Member: I don’t have a GTE statement.
The transcript goes on with questioning of the representative as to why the GTE statement was not prepared. Mr Jaggi was asked if he prepared a GTE form. He said “no”. His representative indicated that he had collected all the information from the applicant via a Word document provided to the applicant.
The following appears at page 5 of the transcript:
Member: (to the Representative) You’re digging a hole. I’ll tell you why you’re digging a hole. Because if I had a GTE statement here, this is not, your Submission is not a GTE Statement from the Applicant. Okay? Let’s pretend it is. I would say to the Applicant, is this your GTE Statement? Yes. Did you write it? And if he said he wrote it, I’d probably go into some of it, what he wrote to make sure he did write it. He said, “No I didn’t write it, my representative wrote it”. How much weight you think I’d put on it? If an Applicant can’t write their own GTE statement? I think…
Representative: Basically Sir, what I’ve tried to do by this Submission is to bring to the Tribunal all the information that I have discussed over the meetings with him.
Member: Not his GTE statement. It’s your Submission. It’s a big difference. You can’t give me evidence, you can give me arguments. He gives me evidence. If you’re doing this for other clients, you’ve got a problem in your practice. I’m gonna ask you some questions through the requirements I need to consider in regard to Ministerial Direction 108. I’m going to give you two weeks to write to me and explain why I shouldn’t refer you to OMARA. Okay. Today’s the 8th. Twenty-second of May, I want something from you explaining to me why you shouldn’t be referred for malpractice. It’s appalling conduct…
Over the following pages, the member proceeds to ask a series of questions of the applicant which appear to cover the relevant material that would be required to be answered in relation to Ministerial Direction No.108 and what would be contained in the GTE statement.
Those answers included the fact that the applicant came to Australia on a visitor’s visa allegedly to spend time with his sister. He had completed Year 12 in India and came after completing Year 12. He was asked why he decided he wanted to study cooking in Australia, and he stated “but in Australia they have good techniques of kitchen… They have good teamwork and skills...”. The applicant was unable to indicate what research he had done in relation to cooking courses in India as compared to Australia.
At page nine of the transcript, the following appears in relation to the research undertaken by the applicant as to cooking courses both in India and Australia:
Member: Have you done any research about the cooking courses available in India?
Mr Jaggi: Yeah, I research on it.
Member: Not will, have you done any?
Mr Jaggi: A little bit.
Member: What’s a little bit?
Mr Jaggi: It was regarding kitchen management that the theory, it’s more about the theory and the practical is not as much.
Member: Where did you read that? Google?
Mr Jaggi: Yep… I searched it.
Member: Did you ask your clients these questions?
Representative: About the course and everything?
Member: Well let’s go from the start. Is the course of study or a similar course available in his home country or region? I know it is. I know that 99% of the cooks in India don’t come here and study, or didn’t go off shore to study okay. Failing on the very first point. (emphasis added) Did you talk to him about this?
There is further questioning of the applicant regarding his family in Australia and what they do. There Tribunal Member asked the applicant about what work prospects he may have in Australia and what he would be paid as compared to India. At page 14, there is discussion between the representative and the member that the applicant’s brother-in-law was a previous client of the representative some 10 or 11 years previously
At page 14 of the transcript the following appears:
Member: You have someone who’s been coaching him on a pathway. So, I don’t think he’s got a genuine interest in cooking. I know how it works Mr Singh, you know that. I do nine of these a week, predominantly in exactly the same situation. I can see through it.
At page 18 of the transcript the Member is recorded as saying:
Member: In my decision, which I’m most likely to affirm, you can imagine, I’m going to say that I’m far from satisfied considering he wanted to be allegedly a cook since he was 17. He knew when he departed India with a visitor visa. It was his intention to apply for student visa after he’d arrived. He misled the Department of Home Affairs in the application for a visitor visa. Yes.
At page 20 of the transcript, the member is recorded as saying (paraphrasing) that one of his main concerns is whether or not the student visa program was being used to get around the intentions of the migration program. That is, if the student visa program was being used to maintain ongoing residency.
The Court is alive to the legitimate concerns voiced by the Tribunal member in relation to the failures of the applicant’s representative which are set out above. The Court is of the view that these concerns were justified. In considering whether or not a fair-minded lay observer might conclude the Tribunal member did not approach the matter with an open mind, the Court is of the view that the criticisms of the representative spilled over into the assessment of the applicant.
First, at the very commencement of the hearing, the Tribunal member indicated he was highly likely to affirm the decision under review. That was before he had heard any of the material by way of evidence from the applicant, noting that this is material that should have been available in the GTE statement. Such a statement was unwise.
Second of all, the statement that 99% of the cooks in India don’t come here (to Australia) to study could be regarded as a generalisation and that the Tribunal member was not being prepared to consider the matter on the evidence before him, rather, his decision was being made on the basis of a generalisation as to the path of study followed by all Indian cooks. This error was compounded by the comments at page 14 of the transcript where the member said “I do nine of these a week, predominantly in exactly the same situation. I can see through it”.
In the Court’s view, given the nature of the commentary set out above, the Court is satisfied that the claim of apprehended bias is regrettably made out. It may be that a different Tribunal member, with the same evidence before them would have arrived at the same ultimate conclusion. However, given the comments made by the Tribunal member in this matter, the Court is satisfied that the ground of apprehended bias is made out. Accordingly, as there is no requirement to consider materiality, given apprehended bias is of a jurisdictional nature in itself, the decision of the Tribunal must be quashed in the matter remitted for the Tribunal for reconsideration.
In this circumstance, it is not necessary to deal with grounds two and three.
DETERMINATION
The application is upheld.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 22 November 2024
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