Kolan v Minister for Immigration

[2014] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOLAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 461

Catchwords:
MIGRATION – Migration Review Tribunal – reasonable apprehension of bias – Tribunal making definitive statements during the course of the hearing – decision set aside.

Legislation:
Migration Act 1958 s.368D
Migration Regulations 1994 cl.572.223 of Schedule 2

Cases cited:
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; (2001) 179 ALR 425; [2001] HCA 28
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: ANIRUDH REDDY KOLAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 1390 of 2013

Judgment of: Judge Riley

Hearing date: 18 February 2014

Date of last submission: 18 February 2014

Delivered at: Melbourne

Delivered on: 20 March 2014

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Counsel for the First Respondent: Warren S Mosley

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Australian Government Solicitor

ORDERS

1. The decision of the Migration Review Tribunal dated 1 August 2013 in matter number 1114494 be set aside.

2. The matter be remitted to the Migration Review Tribunal for determination according to law.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1390 of 2013

ANIRUDH REDDY KOLAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal on 1 August 2013. 

2. The applicant is a citizen of India.  He arrived in Australia on a student visa on 1 August 2009.  The visa was valid until 8 October 2011.  On

   
   

   5 October 2011, the applicant applied for a Subclass 572 Vocational Education and Training Sector visa. 

3. On 12 December 2011, a delegate of the Minister refused that visa application.  The delegate considered that:

   a)the applicant had not complied with the conditions to which his previous visa was subject, as he had not been enrolled in a registered course during the period 30 November 2010 to 28 July 2011; and

   b)he did not study for the 11 months from 11 September 2010 until 4 August 2011, without an adequate explanation, and, as such, he was not a genuine student.   

4. The applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal conducted a number of hearings, including the applicant’s, at the same time.  That is, a number of applicants attended before a particular Tribunal member at a particular time.  The Tribunal made some opening remarks that were heard by all of the applicants simultaneously.  The Tribunal then heard the evidence from each applicant in succession. The applicant in the present case had a migration agent but the agent did not attend the hearing.  An interpreter did not assist the applicant as he told the Tribunal that he did not need one.  

5. The Tribunal affirmed the delegate’s decision on the basis that the applicant was not a genuine student.  The Tribunal found it unnecessary to consider the other criteria for the visa.

Legislation

1. Clause 572.223 of Schedule 2 to the Migration Regulations 1994 relevantly provided at the relevant time that:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

   (2)An applicant meets the requirements of this subclause if:

   (a)for an applicant who is not a person designated under regulation 2.07AO:

   (i)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (ii)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (B)any other relevant matter; and

   (iii)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity …

   …

Ground 1

1. The first ground of review in the application filed on 29 August 2013 is:

   That the Migration Review Tribunal erred in not considering that special circumstances exist in that the applicant was undergoing treatment in India for a serious medical condition.

2. After arriving in Australia on 1 August 2009, the applicant completed a certificate III printing course, which ran between 3 August 2009 and 2 August 2010.  The applicant did not study between 11 September 2010 and 4 August 2011.  He was not enrolled in an approved course between 30 November 2010 and 28 July 2011.  During that time, the applicant went to India for the period 20 January 2011 to 4 March 2011.  Following the delegate’s decision on 12 December 2011, the applicant did not enrol in another course until March 2013. 

3. The applicant sent a letter to the delegate (CB13) in which he said that he had a gap in his study because:

   a)he was sick for two weeks after he returned from India;

   b)when he later went to his college, he discovered that his enrolment had been cancelled without his knowledge;

   c)he appealed but discovered after a month that he was not eligible to appeal because of the delay in appealing; and

   d)the college told him to pay his course fees so that he could reenrol; and

   e)he could not pay the fees for another three months because his financial position was weak.

4. The applicant told the Tribunal that he had the study gap because:

   a)he was very sick in about September 2010;

   b)he went to India and after he returned he was very sick.

5. The applicant gave the Tribunal two documents in support of his assertions.  The first (CB47) was a medical certificate from a doctor in India who said that the applicant, a 24 year old male, was under treatment for enteric fever and gastritis for the period 26 January 2011 to 8 February 2011.  The second (CB48) was a laboratory test report from Mumbai which said that a person by the name of Aravind Reddy, who was described as “27Y/M”, on 27 February 2011 had blood glucose and haemoglobin levels indicating good control.

6. In relation to this material, the Tribunal said at paragraph 24 of its reasons for decision:

   The Tribunal has considered the arguments submitted by the applicant for the period he was not studying, including the weeks he was outside Australia on a visit to India. As well it has taken into account the medical evidence he has given in support of his arguments. The Tribunal is not satisfied that the medical evidence explains the protracted period that the applicant remained in Australia without undertaking any studies.

7. I am satisfied that the Tribunal considered the medical evidence, such as it was.  That evidence did not substantiate the applicant’s explanation for his 11 month study gap, being that he was “undergoing treatment in India for a serious medical condition”.  At most, the medical evidence indicated that he was having such treatment for two weeks. 

8. It was open to the Tribunal to conclude that the medical evidence did not explain the study gap identified by the delegate, being the 11 month gap between 11 September 2010 and 4 August 2011, or the subsequent gap, being the 13 months between December 2011 and March 2013. 

9. There was no jurisdictional error in the Tribunal so concluding.  The applicant is simply seeking merits review in relation to this ground.  Ground 1 is not made out.

Ground 2

1. The second ground of review in the application filed on 29 August 2013 is:

   That the Migration Review Tribunal erred in not granting the applicant leave to submit on his medical condition in that the applicant had serious diabetes in India from the period January 2011 to March 2011.

2. The transcript of the hearing before the Tribunal was provided to the court in the form of a supplementary court book.  At page 3 of the transcript, in his opening remarks, the Tribunal member said:

   The Tribunal:    … if you have any documents to submit today which you haven’t submitted to the tribunal please remember when you come to the table to hand it to me.

3. At page 14 of the transcript, the following exchange occurred:

   Mr Kolan:I can prove medical as well because there was a genuine reason I was being in India ---

   The Tribunal:    Well, you had your opportunity to provide anything you want.

   Mr Kolan:Yeah. Can I provide all these?

   The Tribunal:    Yes, that’s what I said to you, it’s for you to tell me or give me.  Okay, so this is one letter here, is that it?

   Mr Kolan:Yes.

   The Tribunal:    “To whom it may concern”, dated 10 February 2011. “This is to inform you that Mr Reddy, aged 24, male has a case of a diabetes and is currently under my care.”  Okay, that doesn’t stop people from studying.  He doesn’t say you can’t study.

   Mr Kolan:I think so.

   The Tribunal:    You’ve got diabetes.

   Mr Kolan:That a pre-diabetic, that my sugar level ---

   The Tribunal:    He’s under my care, he’s advised to rest.  Well, yes, most diabetics have to rest.  It doesn’t say you can’t study.  (indistinct) So this your HBA one, the three monthly test for diabetics.  It says your actual reading is 6.97, the reference range says six to seven with control.  Average blood glucose, your reading is 146.1, reference range is 141 to 150, good control.  So, is that the medical evidence you wish to have regard to?  The certificate ---

   Mr Kolan:Yes.

   The Tribunal:    That you are under treatment for antag, fever and gastritis from 26 January to February 2011.  Well, okay, you’ve had a specific medication condition for about two weeks.  We’re talking about a period of just under two years.  So, you’ve got the period that says of gastritis for two weeks and then you were diagnosed with diabetes ---

4. After that, the applicant moved on to another point.

5. In these circumstances, the Tribunal did give the applicant an adequate opportunity to explain his medical condition.  The Tribunal said in the opening remarks that applicants should hand up any additional documents they wished to rely upon.  The applicant handed up the two documents described in paragraph 11 above.  When asked, “is that it?”, the applicant said “yes”.  The applicant did not later seek to correct that statement or ask for any time to provide any further medical evidence or any further documents of any description.  It was the applicant himself who moved on to another topic after providing the medical evidence.  This ground is not made out.

Ground 3

1. The third ground of review in the application filed on 29 August 2013 is:

   That the Migration Review Tribunal relied on grounds that were illogical and thereby the Tribunal erred jurisdictionally.

2. Illogicality, as a ground of review, was considered by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. At [130], Crennan and Bell JJ said:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.

3. The Tribunal’s decision in this case was not illogical in the necessary sense.  The Tribunal found that the applicant was not a genuine student, based on evidence that he had spent relatively little of his four years in Australia actually studying.  The Tribunal noted that, though invited to provide evidence of academic achievements in Australia, the applicant produced nothing.

4. It is true that the applicant was enrolled in a course at the time of the Tribunal’s hearing and decision.  However, the applicant’s academic history demonstrates the difference between enrolling in a course and completing it.  The PRISMS report for the applicant is at CB36.  It shows that, apart from the printing course that the applicant completed, and the course he was enrolled in at the time of the Tribunal’s decision, the applicant’s enrolment in five other courses was cancelled.  In addition, there were the protracted study gaps identified by the Tribunal.

5. This ground is not made out.

Ground 4

1. The fourth ground of review in the application filed on 29 August 2013 is:

   That the applicant’s medical condition was due to exceptional circumstances beyond the applicant’s control which the Tribunal ignored and refused to believe.

2. It cannot be said that the Tribunal ignored the applicant’s medical condition.  At paragraph 24 of its reasons for decision, the Tribunal said:

   The Tribunal has considered the arguments submitted by the applicant for the period he was not studying, including the weeks he was outside Australia on a visit to India. As well it has taken into account the medical evidence he has given in support of his arguments. The Tribunal is not satisfied that the medical evidence explains the protracted period that the applicant remained in Australia  without undertaking any studies.

3. The Tribunal patently did consider the applicant’s medical condition.  Indeed, it is implicit in the Tribunal’s reasons for decision that it accepted that the applicant had the health conditions that were evidenced by medical reports.  To the extent that the applicant claimed that his health problems went beyond the documentary evidence, it was open to the Tribunal to reject those claims.  It is implicit in the Tribunal’s reasons for decision that it did so.  This ground is not made out.

Ground 5

1. The fifth ground of review in the application filed on 29 August 2013 is:

   That the tribunal member used the words “ I don’t believe” and “I don’t trust” you and failed to accord a fair hearing to the applicant resulting in breach of natural justice.

2. An examination of the transcript of the Tribunal hearing reveals that the Tribunal did not use the words alleged.  The first part of this ground is not made out.  The second part of this ground is considered under the next ground.

Ground 6

1. The sixth ground of review in the application filed on 29 August 2013 is:

   That the applicant was denied procedural fairness.

2. One of the requirements of procedural fairness is that the decision maker should not decide the case before all the evidence has been adduced.  This particular aspect of the requirements of procedural fairness was considered by the Full Court of the Federal Court in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. In that case, Allsop CJ said:

   2.The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].

   3.Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.

   4.A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.

   5.The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.

3. Also in SZRUI, Flick J said:

   27.Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of reasoning (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48], [2006] HCA 63; 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.

   28.One of the ways in which the present Appellant sought to challenge the decision of the Tribunal was to allege that the exchanges during the hearing evidenced a predetermination by the Tribunal member as to the fate of his claim.

   29.Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at 531-532 Gleeson CJ and Gummow J there observed:

   [71] ... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

   [72] ... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. ...

   …

   33.Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.

   34.Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.

   35.In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:

   ·the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe ... that you’ve been pursued by the YCL”;

   ·the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;

   ·the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and

   ·the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe ... what you’ve told me...”.

   This conclusion is also reinforced by:

   ·the expression by the Tribunal member of her own value judgment that the Appellant’s claim to have made the Muslim girl pregnant would have “absolutely disgraced” the family of the girl and would have been “a great disgrace” as the Appellant would have “dishonoured this girl...”. Such expressions went beyond a means of eliciting a response from the Appellant and trespassed into the area of a concluded view that a failure on the part of the Appellant “to do something” could only be explained by the claim not being genuine.

   A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.

1. The more general test for apprehended bias was set out by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] to [28] as follows:

   [27]The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private. (footnote omitted)

   [28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.  To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

2. In the present case, during the hearing, the Tribunal repeatedly expressed definitive views on the applicant’s claims.  The transcript shows the following statements were made by the Tribunal during the hearing:

   The Tribunal:    … I am not going to accept that you spent a whole year looking to enrol in a course but you couldn’t until March 2013. (page 12 lines 21-22)

   The Tribunal:    I don’t accept that as a satisfactory explanation given the reason you were refused by the department was that when you weren’t studying. Then after you’re refused you lodge your application which means you’re going to dispute that decision of the department with the tribunal and then you (indistinct) study. This is how you demonstrate that you’re a genuine applicant as a student by not studying. Then you come here in July 2013 and say oh I wasn’t able to apply until March 2013 --- (page 12 lines 26-32)

   The Tribunal:    (indistinct) I don’t accept that as a credible - I don’t accept it as credible. I can indicate to you that by these two periods I am not satisfied that you’re a genuine applicant as a student. It is a relevant matter to that question, that is the relevant matter that I put to you, that area September 2010 till August 2011 and then the 2012 period that you just spend it without studying. I don’t accept that you couldn’t get enrolled before then. (page 12 lines 40-45)

   The Tribunal:    I find that very, very difficult to accept.  I don’t accept that you’ve been trying to get enrolled since January 2012 but you couldn’t get anywhere until March 2013.  I don’t accept that as credible. (page 13 lines 10-12)

   The Tribunal:    No, I can’t – I thought you meant just one month. No, that’s not really relevant to my consideration. My consideration is are you a genuine applicant as a student, and the answer is no. After hearing your evidence I’m not --- (page 14 lines 3-6)

   [Following this statement, the applicant produced his medical evidence.]

   The Tribunal:    I don’t know. But, I don’t accept that you can’t get enrolment. (page 15 line 4)

   The Tribunal:    I can tell you that you have not explained the two years of not studying, that your claim that you have been trying since January 2012 and couldn’t get enrolment until March 2013, I find not plausible, not credible, combined you had a long period of not studying. I’m not satisfied you are a genuine applicant as a student. Okay. Thank you very much. Take these to the counter. They’ll copy them and put them on the file. Okay. (page 15 lines 19-23)

3. At this point, the hearing concluded.  When the Tribunal said, “Take these to the counter”, I gather that the Tribunal was telling the applicant to go to the registry and file the medical evidence he had produced during the hearing.

4. During the hearing before this court, the court specifically drew the passages set out above to the attention of counsel for the Minister, with emphasis on the passages in bold. 

5. The Minister firstly submitted that the identified passages were examples of robust and vigorous questioning as approved in SZRUI.

   
   

   I am not able to accept that argument.  The passages identified do not record questions asked of the applicant.  They record concluded views, such as:

   a)are you a genuine applicant as a student, and the answer is no;

   b)I don’t accept … ; and

   c)I’m not satisfied you are a genuine applicant as a student.   

6. There is a critical difference between saying:

   a)I have difficulty accepting … ; and

   b)I do not accept … .

7. In any event, the Minister then submitted that the Tribunal had in fact in the present case given an oral decision, as contemplated by s.368D of the Migration Act 1958 and as contemplated in the hearing invitation at CB41.  In that invitation, the Tribunal said, at CB42:

   … the Tribunal will seek to make a decision at the conclusion of the hearing.

8. Following the hearing before this court, the court wrote to the parties in the following terms:

   … it appears that the procedure of the Migration Review Tribunal when it is giving an oral decision is to say on the front page of its decision record:

   Date of oral decision: ...

   Date of written decision: ...

   Additionally, in its summary of the hearing in the decision record, it is customary for the Tribunal to note that, at the conclusion of the hearing, it said that it affirmed [or otherwise] the delegate's decision.

   Please indicate within seven days whether or not you accept that the usual procedure of the Tribunal is as set out above.

9. The Minister replied saying that he did not press the submission that the Tribunal had made an oral decision in this case.  That revision of the Minister’s position was entirely appropriate.

10. In my view, in the present case,

    a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias[1]

    might have formed the view during the hearing of this matter that the Tribunal would not bring an impartial mind to the matters to be determined.  Consequently, the decision in this case is vitiated on the grounds of reasonable apprehension of bias.  While the last passage quoted above might be characterised as the Tribunal foreshadowing what its decision would be, the other passages quoted above clearly occurred during the hearing itself, and before all of the evidence had been adduced.  They express unshakeable views.  This ground is made out.

    [1] Re Refugee Review Tribunal; Ex parte H

Ground 7

1. The seventh ground of review in the application filed on 29 August 2013 is:

   That the decision of the Migration Review Tribunal resulted in jurisdictional error.

2. There were no particulars to this ground.  However, for the reasons given in relation to the previous ground, this ground is made out.

Conclusion

1. As the conduct of the hearing before the Tribunal gave rise to a reasonable apprehension of bias, the Tribunal’s decision is infected by jurisdictional error.  The matter will be remitted to the Tribunal for determination according to law.  I will hear the parties on the question of costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 20 March 2014