Jatin v Minister for Immigration
[2018] FCCA 966
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JATIN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 966 |
| Catchwords: MIGRATION – Student (temporary) (class TU) higher education sector (subclass 573) visa – breach of condition 8516 – whether tribunal exhibited bias towards applicant – whether tribunal member’s mind was closed or open to persuasion by the applicant– no bias detected in tribunal audio recording or transcript – tribunal did not close off discussion with applicant – tribunal member asked open questions arising from applicant’s oral submissions to the tribunal – finding of the existence of actual or apprehended bias not open on the evidence. |
| Legislation: Migration Act 1958, s.116 |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227 Singh v Minister for Immigration and Border Protection [2017] FCA 994 |
| Applicant: | JATIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2086 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | A R Law Services |
| Counsel for the First Respondent: | Mr T C Smyth |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed 17 February 2015 and amended 1 March 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $6,625.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2086 of 2015
| JATIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, whose subclass 573 higher education sector visa was ordered to be cancelled, sought judicial review in this court arguing that the Administrative Appeals Tribunal had not approached the hearing of the merits review with a mind open to persuasion and that the tribunal therefore exhibited bias towards the applicant.
The question in this case was whether the tribunal, in hearing the merits review, so conducted itself as to show that a reasonable bystander might perceive that the tribunal might not have had an impartial mind.
Synopsis
In my judgment, there was no merit in the applicant’s contentions in this judicial review application. I dismiss this proceeding and order the applicant to pay the minister’s costs.
A short factual recital
On 14 January 2014 the applicant was served with a notice indicating that he had failed to comply with the conditions imposed on his higher education sector subclass 573 visa. The notice stated that it had come to the attention of the minister’s department that the applicant had ceased enrolment at Edith Cowan University and that he had since commenced studies in a non-streamlined course at King E-educational Service Pty Limited. In the notice the applicant was reminded that he contravened visa condition 8516 and that, as he was not enrolled in an eligible course with an eligible education provider, he was considered to be in breach of visa condition 8516.
On 4 June 2014 the department served on the applicant a notice of intention to consider cancellation of the applicant’s student (temporary) (class TU) higher education sector (subclass 573) visa under s.116 of the Migration Act. In that notice the ground referred to was the applicant’s breach of visa condition 8516. In the notice the department informed the applicant that he had the opportunity to comment on the ground identified in the notice and to give reasons why his visa should not be cancelled. The department told the applicant he had five days within which to provide a response.
On 2 July 2014 the delegate cancelled the applicant’s student visa.
On 8 July 2014 the applicant applied to the Migration Review Tribunal for a merits review of the delegate’s decision. On 3 December 2014 the tribunal invited the applicant to appear before it to give evidence and to present argument at 10am on 13 January 2015. The applicant returned the response to hearing invitation on 12 January 2015 indicating he would attend and that he needed an interpreter
The tribunal commenced the hearing on 13 January 2015 at 10:05am and concluded the hearing concluded at 10:40am.
On 15 January 2015 the tribunal decided to affirm the delegate’s decision to cancel the applicant’s student (temporary) (class TU) (subclass 573) higher education sector visa.
Pursuant to orders of this court made on 28 April 2015, constitutional writs were issued, the effect of which was to set aside the tribunal’s 15 January 2015 decision and to remit the matter for reconsideration.
On 23 June 2015, the tribunal invited the applicant to again appear before the tribunal, this time at 9:30am on 6 August 2015. The applicant responded to the hearing invitation by indicating he would be present and he requested a Punjabi interpreter. On 6 August 2015 the tribunal conducted a hearing that commenced at 9:28am and concluded at 10:40am. The applicant gave evidence as well as Gurwinder Parmar.
On 17 August 2015 the tribunal decided to affirm the delegate’s decision to cancel the applicant’s student (temporary) (class TU) (subclass 573) higher education sector visa.
In this court
By application filed in this court on 11 September 2015 and amended on 1 March 2018 the applicant sought judicial review of the tribunal’s decision made on 19 August 2015. The single ground of the amended application was as follows –
The decision of the Tribunal is affected by apprehended bias, or is affected by a failure to comply with s 360(1).
Particulars
See applicant’s submissions dated February 2018.
The ground of review included particulars that the applicant’s submissions filed 26 February 2018 contained the details of the allegation of bias. Those submissions contained a lot more than details of the allegation of bias. The impugned exchange on which the applicant relied, at least for the purposes of his written submissions, was at paragraph 16. It is useful to set it out in full as the address before me went quite a deal further than that passage. In any event, the passage on which the applicant relied in his written submissions was as follows –
At page 19, the Tribunal member states, in conclusive terms:
WITNESS: Because all the time I was getting misguided, but now (indistinct) intention to study, so now (indistinct) bachelor. 15 (sic)
MEMBER: So given what you’ve already told me, I don’t find the claim that you’ve been misguided very convincing at all.
However, elsewhere in the applicant’s written submissions the applicant contended that at least one response by the tribunal member revealed the tribunal’s unwillingness to listen to the applicant’s evidence. The passage was this –
I’m not that concerned about what he did.
The applicant’s counsel submitted that such a response revealed the tribunal’s reaction that “had an obvious chilling effect on the applicant’s ability to give this evidence”[1] (Mr Aleksov’s own words).
[1] Applicant’s submissions filed 26 February 2018, pg.15 (p.3).
Expressed more globally, Mr Aleksov put the proposition of bias in the following terms at paragraph 11 of his submissions –
… where a decision maker is too prescriptive or directive in their questioning, and practically deprives an applicant of the opportunity to present their case in the manner that they wish to do so, an apprehension of bias may arise.
Upon reading the amended application that referred to the grounds of review being contained in the applicant’s February 2018 submissions, those submissions were relatively discursive and it was none too easy to tell precisely what aspect of those submissions represented the applicant’s amended grounds of his application for judicial review.
In his verbal address before me, Mr Aleksov relied extensively on the transcript of the proceeding before the tribunal, a copy of which was exhibited to the applicant’s affidavit sworn 9 February 2018. Mr Aleksov conceded that no single exchange between the tribunal member and the applicant nor any particular stand-alone comment by the tribunal member represented a single incident on which the applicant could rely to make out the existence of bias. Instead, Mr Aleksov contended that the comments of the member to which he took me, when aggregated, amounted to the tribunal revealing that it was not able – or it was not willing – to bring an open mind to the issues before the tribunal.
The tribunal hearing and the evidence of it
Mr Aleksov characterised this as a closed mind case rather than as a case involving aggressive statements by the tribunal member to the applicant or a case where the tone of questioning was unduly abrupt or rude. Mr Smythe of counsel for the minister accepted that characterisation. Each counsel was ad idem[2] that no authority covered the point raised in this case. Each agreed that the decisions in MZZLO v Minister for Immigration and Border Protection (No.2)[3] and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship[4] did not provide any particular illumination of the point in this case.
[2] T36L41
[3] (2016) 246 FCR 111
[4] [2013] FCAFC 80
Mr Aleksov took me to extensive transcript references that he contended made good the proposition that the tribunal member’s mind was closed. Mr Smyth invited me to read the transcript while concurrently listening to the audio version of the recording made of the hearing so as to thereby detect not only what was said but how it was said, pauses between questions, interpretation and responses and the speed of delivery of the questions. In accordance with both requests, I not only read the transcript exhibited to the applicant’s affidavit but also listened to the CD version of the audio, marked as exhibit A.
Before turning to the detail, Mr Aleksov submitted that my task was to reach an impressionistic assessment of events and that the applicant merely had to demonstrate, in order to succeed, that the apprehension of bias was one of the possible conclusions open. At a factual level, Mr Smythe submitted that no basis existed for the conclusion of apprehended bias on the ground that the tribunal member had a closed mind.
It is necessary to record the passages on which Mr Aleksov relied when submitting that the tribunal had a closed mind. Mr Aleksov frankly (and properly) conceded that taken in isolation few, if any, would amount to illustrations capable of supporting an allegation of the apprehension of bias. But, when aggregated, the position was quite different, he said. To properly address Mr Aleksov’s arguments, it was necessary to record each comment by the tribunal member because each formed a cog in the aggregated effect of the exchange. Mr Aleksov invited me to consider the narrative recorded in the transcript before the tribunal against a factual backdrop that was explained by Mr Aleksov at page 4 of the transcript of the hearing before me. Relevantly condensed, it amounted to the following –
a)the applicant exhibited a long period of non-compliance with the terms of his student visa;
b)the applicant was duped by a person who was later identified as receiving a commission for procuring the re-enrolment of students such as the applicant; and
c)by reason of the applicant’s cultural background, the applicant respected the fact that the recipient of the commission was a lawyer whose word the applicant followed.
Mr Aleksov submitted that the applicant succeeded in conveying to the tribunal some but not all of the information recorded in the immediately preceding paragraph. Mr Aleksov said the important aspect of the foregoing was not told to the tribunal.
Set out below were the passages on which Mr Alexisov relied, scattered throughout the transcript of the hearing before the tribunal. They were –
a)page 4 line 1 where the member asked whether the applicant remembered when his visa was granted to which the applicant said on lines 30 to 33 that it was granted for his diploma of business;
b)page 6 line 14 where the member asked why the applicant stopped studying, in response to which the applicant was not recorded as having given a response (it seemed by reason of his inaudible response);
c)the applicant was then asked why he moved colleges to which he answered that they (he did not say who they were) told him “there would be less fees over there”, a response on which Mr Aleksov placed considerable reliance;
d)the member then stated on page 7 line 31 that the member did not understand why the applicant changed colleges on page 7 line 25 to which the applicant said he thought he could save money on page 7 line 31 a point of considerable significance according to Mr Aleksov as he submitted on page 6 line 36 that this was a radical change in the applicant’s study from higher education to not higher education;
e)on page 8 line 4 a series of questions followed that were recorded precisely yet the applicant’s responses were recorded as being indistinct. Mr Aleksov submitted that the applicant’s evidence to the tribunal amounted to the applicant saying that he enrolled in a college that was not a qualifying facility;
f)on page 8 line 35 and following where the applicant told the tribunal member that the applicant was told by a lawyer that he (the applicant) did not “need to tell them the truth, because if you tell them the truth, they will not let you change the college” (the applicant’s words), an exchange on which at page 7 Mr Aleksov focused yet said he did not place any emphasis on it;
g)page 9 line 39 where the applicant explained why he changed his studies so that he went from a diploma of business to a bachelor of business then to a certificate IV in business, where his exchange with the member was as follows –
MEMBER: No, why did you do that? You’ve just given me a very convincing explanation of why you wanted to study a Bachelor of Business. You said your dad runs a hotel in India. You think that more study in the area of business will lead to greater prospects for you and for your family business. You said that you had decided that Edith Cowan was a good university, and you’d decided that Perth was a good place to live, and you would then come here. And then, four months later, you meet someone and change your mind about all of those things.
WITNESS: Yes, because he was the lawyer (indistinct words) he would be a good (indistinct) because he is a lawyer (indistinct words).
MEMBER: But you haven’t told me that you were having any troubles or difficulties with your studies. You haven’t told me that money was an issue for you. So I don’t understand why you would - - -
WITNESS: (Indistinct words) he said, like, “You can save money if you want.” Everyone wants to save his money, so (indistinct).
h)when asked about the significance of that exchange, Mr Aleksov submitted as follows –
MR ALEKSOV: His case out to have been, if he was given the opportunity that he needed to be given, that I spoke to a person, that person occupied a position of trust and authority, as my culture understands it, a lawyer.
HIS HONOUR: Yes.
MR ALEKSOV: That person told me that I could achieve, and save money without compromising my migration position, so I acted on that advice, and because I was duped in that way, you should exercise – you, member, should exercise your discretion not to cancel the visa. That was his case. Now, that’s me putting it in slightly better terms than her put it, but that’s the upshot of it.
HIS HONOUR: Would you not need evidence of sort of an anthropological nature to explain what the cultural differences are? I know - - -
MR ALEKSOV: Before, your Honour, perhaps, before the tribunal, no.
i)on page 10 of the tribunal transcript the first of Mr Aleksov’s contentions of bias emerged when the member said the following –
MEMBER: I’m not that concerned about what he did. I’m concerned about what you did. Ultimately, Mr Jatin, this is your visa, your conditions on the visa, and it’s your responsibility. You (sic) visa is your responsibility. So what I’m interested in is why you did these things, not why the lawyer said or didn’t say certain things. Why did you do these things? I still don’t understand why you changed courses, from PIBT to Kingdom.
Mr Aleksov submitted the exchange immediately above revealed apprehended bias because, so he said, the tribunal member expressed a firm opinion upon that evidence prior the conclusion of the evidence on point. Mr Aleksov contended that when examining issues relevant to apprehended bias the court can take into account an accumulation of episodes that aggregate such that a fair-minded lay observer might become concerned that the tribunal might not bring to bear an open mind on the matter at hand. Mr Aleksov contended that in isolation none of the passages on which he relied might be sufficient but when aggregated the apprehension of bias became manifest;
j)page 13 line 18 where the tribunal member said to the applicant that the applicant had been told by January 2014 that the applicant was in breach of his student visa condition, although Mr Aleksov submitted he did not put the passage any higher than to contextually explain the narration in the few preceding passages of transcript;
k)page 14 line 34 where the tribunal member pressed the applicant about what he did when the department communicated with him in January 2014 in response to which the applicant said he left for India on 21 January returning in March;
l)on page 19 line 9 and following the tribunal member brought to the applicant’s attention that the member was concerned with the applicant’s breach of condition 8516, followed by a poignant exchange, the full transcript of which while lengthy was as follows –
MEMBER: So I’d like to talk about of those things today. That doesn’t mean that you can’t tell me anything that you think would indicate that your visa should not be cancelled. So you’re completely open to mention anything at all that you think is important to that. Now, one of the concerns more generally in relation to the cancellations is the period of the breach. You had quite a significant period where you were in breach of condition 8516, and that’s a concern for me. The thing is, you’ve told me that you came here to study at the bachelor level, but you haven’t enrolled in a bachelor level course since December 2012. That’s a long time.
WITNESS: Because all of the time I was getting misguided, but now (indistinct) intention to study, so now (indistinct) bachelor.
MEMBER: So given what you’ve already told me, I don’t find the claim that you’ve been misguided very convincing at all.
WITNESS: I was misguided.
MEMBER: I’m not sure I accept that. The difficulty is that you gave me very, very clear and convincing reason why you wanted to study the Bachelor of Business at Edith Cowan. And then you say someone came along and told you to save money, which you’ve told me you didn’t need to do, because finances were fine; to save money, you should transfer to a different course at a different level, and everything would be fine, and you did that. I’m not sure I accept that that’s what happened.
WITNESS: It was – happened like that.
MEMBER: I’m not sure I accept that, because you haven’t explained to me why you did those things. You’ve said, “I was misguided, I was misguided.” That’s not really a reason. That might be part of a reason, but you haven’t explain (sic) why you changed courses; why you, from finding that Edith Cowan is a good university, finding out that you wanted to do a Bachelor of Business to help your father, and that that level of education, you considered, would give you greater benefit: all of those things indicate to me that you are a reasonably intelligent young man; that you have done some research; that you’ve thought about these things. So then, when you say, “I was going along fine at PIBT, but then a lawyer came along and told me to do something different, and so I did that,” that’s not – I don’t really understand that.
WITNESS: I just transferred to the business course (indistinct words).
From those transcript extractions, Mr Aleksov submitted that the applicant was endeavouring to explain the details of the applicant’s claim, especially details of the way the applicant was misguided, but that the tribunal member prevented him from doing so. Mr Aleksov submitted that the interference by the tribunal member prevented two issues from emerging. The first, he said, was an issue about cultural expectations and the second, he said, was that the agent took the commission. When asked about the weight the applicant placed on the fact of the agent being paid for we what did, Mr Aleksov made the following submission recorded page 18 of the transcript before me –
MR ALEKSOV: That the agent had an interest in withholding from the applicant the truth of the consequences upon his migration position from the transfer. So that’s the argument. If that fact was accepted the obvious argument that arises there is, “Well, hang on a minute.” That inherently corroborates the allegation that this person was duped and was naïve because the person said to have done the duping, the fraudster, had an interest in this. They took a benefit from it, and that inherently corroborates the argument.
Returning to the way the hearing before the tribunal member unfolded, Mr Aleksov submitted that certain of the member’s statements indicated that the member had already formed a concluded decision. He pointed to the following exchange –
MEMBER: I’m not sure I accept that. The difficulty is that you gave me very, very clear and convincing reason why you wanted to study the Bachelor of Business at Edith Cowan. And then you say someone came along and told you to save money, which you’ve told me you didn’t need to do, because finances were fine; to save money, you should transfer to a different course at a different level, and everything would be fine, and you did that. I’m not sure I accept that that’s what happened.
Mr Aleksov described that as “the killer” point for the applicant (his words). He submitted that was the applicant’s whole version of the case. He said that after the applicant conveyed his whole case, the member told the applicant that the member was not sure the member accepted the version given. Mr Aleksov said the member’s words “I’m not sure I accept that” were sufficiently close to the expression of a concluded opinion that it would lead a fair-minded lay observer to develop the potential for an apprehension of bias.[5]
[5] T19L16-19.
Mr Applicant relied on a sentence from the member is supporting his apprehended bias contentions. The sentence was as follows –
So that explanation doesn’t make any sense, Mr Jatin.
That statement was part of long exchange with the member so the sentence must be viewed in context. The following was the context –
MEMBER: And you haven’t completed any courses here? So one of the things that I look at, and that does cause me some concern when I’m considering whether someone is a genuine student is whether they’ve transferred from high-cost to low-cost courses, and whether they have a low completion rate for the period of time that they’ve been in Australia, and held a student visa, in your case, until July 2014. When I look at that period of time – it’s a reasonable period of time – you haven’t completed any courses. You also transferred form a high-cost bachelor course to low-cost vocational education courses. So that causes me real concerns about whether you are actually a genuine student. Do you want to say anything about that?
WITNESS: (Indistinct response.)
MEMBER: Sorry?
WITNESS: (indistinct) changing high-cost to low-cost?
MEMBER: Yes.
WITNESS: Because, as I told you, like, the lawyer told me, “You can save money.” Everyone wants to save money, so that’s (indistinct words).
MEMBER: But you haven’t told me that you had financial difficulties.
WITNESS: I haven’t had any financial (indistinct).
MEMBER: So that explanation doesn’t make any sense, Mr Jatin.
WITNESS: But, like, everyone wants to save his money (indistinct words).
MEMBER: No, I don’t think that’s true. I think people want to spend their money on a variety of things. Saving them might be one of the things they want to do. They might also want to get a quality education from an educational institution like Edith Cowan. So I’m not sure it follows that because you met a lawyer who said “Save your money” that you stopped studying at Edith Cowan – or towards study at Edith Cowan University. Given everything you’ve told me about you, and what you wanted to achieve, that doesn’t make any sense.
WITNESS: (Indistinct response).
MEMBER: Now, when I consider those factors, with what you’ve told me, that you didn’t study for about four months, that causes me significant concern, because it’s a condition on your visa that you maintain enrolment in an educational course – and it appears that you didn’t do that for about four months – and also that that you maintain satisfactory course progress and attendance, which, again, you didn’t do, because you weren’t enrolled in a course in that period of time. So it appears to me that you may have significantly breached other conditions of your visa over that time. I suppose the big question for me is, given all of these things that have occurred that you’ve done in the past, are you a genuine student, and, going forward, if the visa were granted, would you study?
Mr Aleksov contended that the applicant had been told that this case did not make sense before he adduced all the evidence he wanted to adduce. He said a fair-minded observer might have thereby apprehended that this tribunal might not be prepared to listen to the applicant’s full version of events.
On behalf of the minister, Mr Smyth advanced a collection of propositions in both his written and verbal submissions.
First, he rejected the proposition that the applicant was not permitted to tell the full version of his contentions. Mr Smyth argued that where the transcript recorded that the applicant did not complete an answer or that the applicant’s answer was indistinct, the member picked up a thread of the questioning and either asked the question in a different way or invited the applicant to say whatever he wanted to say.
Next, Mr Smyth contended that with a number of questions put by the member, the tribunal member was endeavouring to understand why the applicant changed education providers. During that exchange, the tribunal expressed its thinking in respect of the applicant’s previous studies.
Next, Mr Smyth addressed the contention that the member exhibited behaviour consistent with a closed mind or, at least behaviour that might have indicated to a fair-minded observer that the tribunal might not bring an open mind to the adjudication process. He submitted that whenever the member indicated that the tribunal did not find a particular proposition convincing or that the tribunal had doubts, the tribunal gave an explanation for its doubts. Thereafter, Mr Smyth said the tribunal gave what he said was an “exemplary explanation” recorded at page 18 of the transcript. It read as follows –
MEMBER: So as I understand it, my role is to weigh up the things that go for and against the cancellation of your visa. If we proceed that it appears there is grounds for breach, then the question is, should your visa be cancelled? So what I am suggesting is that we now have a conversation about some of the things we’ve already spoken about, and anything else you’d like to raise which you think goes to why your visa should not be cancelled. I will explain to you some of the concerns I have which may weigh against that, and may indicate that the visa should be cancelled. Does that make sense?
Mr Smyth argued that the phrase “I’m not sure I accept that” was not mere politeness. He said the phrase was a different way of saying what is commonly said in functionally interrogative phrases such as –
a)“I doubt that”;
b)“I have not reached a concluded view, but…”;
c)“one matter that might influence my thinking is…”;
d)“one matter that troubles me”; or
e)“a matter that might weigh in the exercise of my discretion is…”.
Before turning to the legal issues that arose in this case, on which both counsel submitted that they were in common cause, it is necessary to make certain observations about the way in which the tribunal expressed itself in the hearing. I make the observations that follow having listened to the disc that Mr Smyth tendered.
At the outset, it is necessary to record that no complaint was made about the tone of the tribunal’s delivery. Nor was complaint made about the member’s physical demeanour. The applicant’s case was cast purely on a closed mind basis thereby giving rise to apprehended bias. Not every transcript reference to which Mr Aleksov took me revealed an exchange that indicated that a fair-minded lay observer might have concluded that the tribunal might not have brought an open mind to bear on the case.
Let me go first to the style of questioning.
When the tribunal said that the member did not understand a particular answer given by the applicant, in my view, nothing noxious arose from the tribunal disclosing that it did not understand the point as put by the applicant. By stating that the member did not understand what the applicant said, the tribunal gave the applicant an opportunity to develop whatever he wanted to say on point. It must be remembered that the tribunal was not required to give a running commentary on its thought processes. Here, it did. It gave the applicant an insight into its concerns. It said so in as many words. It invited the applicant to respond to its concerns. It invited the applicant to persuade the tribunal of his position on a particular point. Far from closing off discussion on any point, by indicating that the tribunal had concerns the tribunal was in reality inviting the applicant to tell his version in a more expansive manner. A reading of the exchange on page 9 of the tribunal transcript appeared more like a legal practitioner taking instructions and probing for answers to issues that did not align with other issues about which a previous version had been given. Similarly, on page 10 of the tribunal transcript the member correctly told the applicant that the member was principally concerned with what the applicant did. Far from that shutting down the discussion in which the applicant was then participating, the member asked, with open questions, why the applicant did the things he said he did and the member indicated that the member still did not understand the point the applicant was advancing. That was an altogether different position from the member telling the applicant that the member would not be persuaded by anything the applicant said. If anything, the repeated form of questions “but why did you do these things” told of the genuine search for answers and not of the shutting of the tribunal’s mind.
It was significant that one of the exchanges the applicant impugned on page 10 of the transcript occurred early in the tribunal hearing. If the applicant was aggrieved by the tribunal’s conduct he could have raised the point before the member then and there, alerting the member to his concern that he was not being fairly heard. Instead he chose to agitate his concerns before me, not having previously ventilated the slightest concern about them.
The applicant also placed considerable store in the exchange on page 18 of the tribunal transcript. When properly analysed, in my view, there was nothing noxious in that exchange nor was there anything that indicated that the fair-minded lay observer might take the view that the member might not bring an open mind to bear. At line 28 on page 18 the member described the member’s role. There was nothing untoward in that. The statement of the member’s role was accurate. The question posed by the member, namely, whether the visa should be cancelled, was correct. The suggestion that the member and the applicant have a conversation was an appropriately informed method of indicating the subject matter of the proposed discussion. The description of the exchange as a “conversation” was not capable of raising an apprehension of bias. The member expressly stated that the conversation would include anything else the applicant wished to raise which he thought would go to why his visa should not be cancelled. The member then said that he would explain to the applicant some of his concerns. Then the member asked whether that made sense, to which the applicant replied in the affirmative. Nothing in the nature of any apprehended bias arose from that.
At the top of page 19 of the tribunal transcript the member said an important point. It was as follows –
So I’d like to talk to you about some of those things today. That doesn’t mean you can’t tell me anything that you think would indicate that your visa should not be cancelled. So you’re completely open to mention anything at all that you think is important to that. …
Far from that indicating a close mind, it was a very generous invitation for the applicant to say whatever he thought he needed to say. I did not detect the slightest evidence of anything that went anywhere near approximating apprehended bias in that exchange
The applicant impugned a comment by the member at page 19 lines 17 and 18. There, in effect the member said that in view of information already given the member did not find the claim that the applicant had been misguided very convincing. The witness argued the point by saying he was misguided. Then the member went into detail why he had stated that he did not find the claim that the applicant had been misguided very convincing. After that explanation, the applicant said “it happened like that” which I read as the applicant asserting the correctness and the validity of the version he had just given. Then the member said words with which the applicant took issue, namely “I’m not sure I accept that” followed by “because” and then followed by the reason why the member had reservations about accepting the version given by the applicant. But once that information was imparted the exchange reverted to a question and answer format in which the member put open questions such as “why was that” or the member put questions embedded in which were factual investigations, such as “but didn’t you want to study a bachelor business? I mean, wasn’t that your plan?” There was nothing untoward in such a line of questioning. Under no circumstances could it be said the line of enquiry expressed in those terms disclosed an apprehension of bias.
Between lines 26 to 35 of the tribunal transcript on page 20, the member put a statement that was said to ground the applicant’s contentions about apprehended bias. I do not agree that it did. In that passage the tribunal did no more than highlight a matter weighing on the member’s mind, namely, whether a person was a genuine student and that such consideration involved assessing the transfer of a student from a high cost to a low-cost course, whether the student had a low completion rate for the period of time he or she had been in Australia and whether the applicant had anything he wanted to say. He did. He went on to give his version of events. Then, at line 28 on page 21, the member posed the following –
… I suppose the big question for me is, given all of these things that have occurred that you’ve done in the past, are you a genuine student, and, going forward, if the visa were granted, would you study?
Four passages of transcript then followed. At the foot of page 22 the member again told the applicant that the fundamental question for the tribunal was whether, having regard to the matters about which the applicant gave evidence the applicant would study in the future. Then followed more from the applicant, all of which the tribunal permitted without interruption.
Having read to the tribunal transcript at least six times and listened to the audio recording, I have approached this case with a benevolent interpretation in favour of the applicant. Yet I have been unable to conclude that the member exhibited any apprehended bias. The member repeatedly invited the applicant to explain himself. The tribunal repeatedly highlighted matters of concern and invited the applicant’s response. The member repeatedly clarified areas of concern or issues where the applicant’s answers made little sense as a matter of logic. I do not accept that the applicant endeavoured to tell his version and, upon going no more than part of the way, was confronted with the tribunal member whose mind was closed. To the contrary. Right up to page 22 of 25 pages of tribunal transcript it was apparent that the member was wrestling (described by the member as “the fundamental question for me”) with the significance of things that the applicant had done in the past as being reflective of the likelihood of his studying in the future. To my mind it could not be sensibly contended that the tribunal had made up its mind on the issue. All the more, at page 10 of the tribunal transcript (and therefore earlier in the hearing) the member was wrestling with the same issue. I do not accept that the member’s mind was closed in the way the applicant said.
The legal test of bias, especially the reasonable apprehension of bias as opposed to actual bias, remains as recorded by the High Court in a short number of key authorities. Chief among them is Ebner v Official Trustee in Bankruptcy.[6] To that must be added Re JRL; Ex parte CJL[7] and Isbester v Knox City Council.[8] In the specific context of migration law, the Full Court of the Federal Court of Australia has pronounced on point in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[9] At single judge level, the Honourable Justice Moshinsky made a valuable contribution to the jurisprudence on the issue in MZZLO v Minister for Immigration and Border Protection (No.2).[10] I reviewed the authorities in some detail in Singh v Minister for Immigration and Border Protection,[11] upheld on appeal by the Honourable Justice Pagone in Singh v Minister for Immigration and Border Protection.[12] Since then, the Full Court of the Federal Court of Australia addressed the subject of reasonable apprehension of bias in Sharma v Minister for Immigration and Border Protection.[13] There, the Full Court was dealing with a case in which the cumulative effect of numerous interruptions by the tribunal and numerous instances where the member peremptorily shut down the applicant’s evidence. No factual parallel existed on the facts of this case, nor was this case (unlike in Sharma) one where the tone of voice used by the member was demeaning and dismissive. In any event, Mr Aleksov opened by telling me this case was limited in its content to the apprehension of bias, to whether the member’s mind was closed or whether it was open to persuasion, and that the case did not involve one where the tone of voice was aggressive or the style of interrogation was rude. On that analysis I am of the view that the member’s mind remained open throughout.
[6] (2000) 205 CLR 337
[7] (1986) 161 CLR 342
[8] (2015) 255 CLR 135
[9] [2013] FCAFC 80
[10] (2016) 246 FCR 111
[11] [2017] FCCA 247
[12] [2017] FCA 994
[13] [2017] FCAFC 227
The applicant failed to persuade the tribunal that he was entitled to the relief sought. In the conduct of the hearing I detected no bias, whether apprehended or actual, by the member. Nor was a conclusion of the existence of an apprehension of bias open on the evidence.
This application for judicial review failed. I dismiss the proceeding an order the applicant to pay the ministers costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 20 April 2018