Shahid v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 797
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shahid v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 797
File number(s): MLG 2374 of 2018 Judgment of: JUDGE EGAN Date of judgment: 4 October 2022 Catchwords: MIGRATION – Tribunal member found to have regularly interrupted the first applicant, and was scornful toward her, during the course of the Tribunal hearing – having listened to an audio recording of the Tribunal hearing, and having contemporaneously read the transcript of such hearing, the overall impression was that the member might not have brought an impartial mind to the question as to whether or not the first applicant was a witness of truth – finding that decision of Tribunal was affected by apprehended bias – jurisdictional error established – decision of Tribunal quashed. Legislation: Migration Act 1958 (Cth) s. 360.
Migration Regulations 1994 (Cth) s. 500.212 of Schedule 2
Cases cited: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 26 August 2022 Date of hearing: 26 August 2022 Place: Brisbane Counsel for the Applicants: Ms G Costello KC Solicitor for the Applicants: Da Gama Pereira and Associates Counsel for the First Respondent: Ms R Amamoo Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2374 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MRS FATEMA SHAHID
First Applicant
MR MD NAZMUS SHAHADAT
Second Applicant
MS AFIFA ZAHIN NAZIFA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
4 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Amended Application for Review filed on 27 July 2022 be granted.
3.The decision of the Administrative Appeals Tribunal made on 19 July 2018 be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted back to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicants’ application, that it be constituted by a different member than the member who handed down the decision on 19 July 2018.
6.The Applicants file and serve submissions as to costs by 4.00pm on 5 October 2022.
7.The First Respondent file and serve submissions in response by 4.00pm on 6 October 2022.
8.The matter of costs be decided on the papers.
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 Egan
Introduction
The first applicant was a female citizen of Bangladesh who applied for a Student (Temporary) (Class TU) Visa on 7 November 2016. The second, third and fourth applicants sought visas as members of the first applicant’s family unit.
On 10 January 2017, a delegate of the Minister refused to grant the visas.
The first applicant made an application for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’). On 19 July 2018, the applicants appeared before the Tribunal to give evidence and present arguments. The applicants were represented by a registered migration agent, and the hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
On 19 July 2018, the Tribunal provided written reasons by which the decision of the delegate was affirmed. The Tribunal was not satisfied that the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) had been met, namely that the applicant intended genuinely to only stay in Australia temporarily.
Grounds of Review
On 9 August 2018, the applicant’s lawyers filed an Originating Application for Review of the decision of the Tribunal. At the hearing of the matter before the Court, the applicants relied upon an Amended Application for Review filed on 27 July 2022, the grounds of which were as follows:
“1.The Tribunal’s decision lacks intelligible justification in that at [26] of its reasons for decision the Tribunal stated that it had on many occasions in the hearing asked the applicant why she could not now open a nursing institute when in fact the Tribunal never asked the applicant that question; and the Tribunal’s reasons are premised on a finding that the applicant had fulfilled all the requirements for medical registration in Australia when there was no evidence she had sat or passed the relevant exam.
2. The Tribunal failed in its statutory task to provide the applicant with a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s360 of the Migration Act 1958 in that:
a. The Tribunal prejudged the question of whether the applicant was a genuine applicant for entry and stay as a student, such that the hearing was an empty gesture.
b. The Tribunal interrupted and was scornful and incredulous in the hearing.
c. The Tribunal did not give the applicant a real opportunity to comment on when the applicant applied to the Australian Medical Council and what the results were.
3. The Tribunal’s decision is affected by apprehended bias in that the Tribunal’s interrupting, scornful and incredulous manner in the hearing might lead to an apprehension that the tribunal might not have brought an open mind to the question of whether the applicant was a genuine applicant for entry and stay as a student.
4. The Tribunal breached s359A of the Act by not giving the applicant clear particulars of when the applicant applied to the Australian Medical Council and what the results were.
5. The Tribunal breached s359A of the Act by not giving the applicant clear particulars of Bangladeshi regulations for medical practice and nursing practice.”
Grounds 2 and 3 of the Amended Application for Review asserted that the presiding member of the Tribunal, by their conduct, had prevented the applicants from having the review conducted according to law pursuant to the provisions of s. 360 of the Migration Act 1958 (Cth) (‘the Act’). Senior Counsel for the applicant referred the Court to the decision of the Full Court of the Federal Court in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 where, at [38]-[40] and at [49]-[51], it was said as follows:
“[38]One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:
…must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).
[39]In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:
(a) the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];
(b) specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];
(c)saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:
(i)they have an opinion on the relevant aspect of a matter in issue;
(ii) they will apply that opinion to the matter in the case; and
(iii)they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and
(d)having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].
[40]The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as Kirby J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [90], the test:
…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.
[Citations omitted]
…
[49]While the appellant’s submissions sometimes overstate the position, having listened to the audio recording we are satisfied that at various points the Tribunal member’s tone and manner in questioning of the appellant was loud, aggressive and interrupting. He often raised his voice and was impatient and sometimes rude. He was, on occasion, scornful or incredulous as to the appellant’s evidence. He also showed disinterest in evidence which might tend to show that the appellant’s incorrect answer in the 2018 visa application was not purposefully false. The Tribunal member’s conduct also suggested that he was affronted by the appellant’s offending conduct and perceived lack of remorse.
[50]The Tribunal’s inquisitorial role may involve robust and forthright testing of a visa applicant’s claims, and such testing will not of itself sustain a finding of apprehended bias: SZRUI at [24] (Flick J, with whom Allsop CJ agreed); and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias. Generally such behaviour simply forms part of the factual matrix in relation to which any question of apprehended bias is to be assessed, but in some cases such behaviour may show bias or give rise to a reasonable apprehension of bias: SZRUI at [91] (Robertson J with whom Allsop CJ agreed) citing Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at 10-11 (Lockhart J).
[51]We have considered each of the instances of conduct by the Tribunal member on which the appellant relies, but our decision does not turn on a particular instance or instances. Rather, considering the Tribunal member’s conduct during the hearing in totality, and looking at the evidence cumulatively, we are satisfied that a fair-minded and appropriately informed lay observer might reasonably apprehend that the member might not bring an impartial mind to the question as to whether the appellant’s incorrect answer in his 2018 visa application was purposefully false. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Watson at 259 (Barwick CJ, Gibbs and Mason JJ (as their Honours then were), and Stephen J) citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ). What strikes us when listening to the audio recording is that the Tribunal member’s conduct in the hearing crossed the line articulated in Ebner and the other authorities to which we have referred. In our respectful view the primary judge erred in finding otherwise.”
The Court was invited to listen to relevant parts of an audio recording, noting that there was also a full transcript of the Tribunal hearing. The Court took the opportunity of listening to the audio recording, having had the contemporaneous benefit of the transcript for cross-referencing purposes at such time.
Having listened to the audio recording in its entirety, the Court is satisfied that a fair minded and appropriately informed lay observer might reasonably apprehend, when considering the audio hearing and transcript as a whole, that the Tribunal member might not have brought an impartial mind to the question as to whether the first applicant’s explanations as to the timing and reasons for her having made an application for enrolment as a medical practitioner with the Australian Medical Council were true or not. The Court accepts the submissions made on behalf of the applicants that the Tribunal member regularly interrupted the first applicant during the course of the hearing, and that he was scornful and incredulous for much of the hearing. The Court was not satisfied that on the crucial question as to whether the first applicant had a genuine intention to remain only temporarily in Australia, the Tribunal member had not formed an unacceptably early view which was adverse to the applicants.
The Court adopts as correct the submissions of the applicants appearing at [11]-[12] inclusive of the written submissions filed by leave at the time of the hearing, which submissions are relevantly as follows:
11. The Applicants ask the Court to listen to the following parts of the hearing recording:
Time
Issue
7:30
Tribunal interrupts the applicant and says “Tell me why you want to be a nurse. If you can’t tell this hearing will end right now” in a tone is loud and domineering.
9:08
Tribunal says “you forgot” in an incredulous tone.
18:00-20:15
Exchange in which the Tribunal is incredulous and disbelieving.
27:00-27:30
Tribunal says in stern tone “Dr Shaheed, I’, obliged by law to inform you that I don’t believe you” and “I Don’t believe you” and “You can try to tell the truth”.
12. The balance of the issues can be seen from the Transcript, particularly:
a) At page 4 the Tribunal asks “why any person would want to enrol in nursing when he or she has the background that you and I both understand”. The Tribunal’s language demonstrates incredulity and a closed mind.
b) At page 6, the Tribunal asks “No you don’t forget. You’re choosing not to tell me. Now you’ve given an oath to tell the truth.”
c) At page 10 the Tribunal says, “I’m going to adjourn this hearing for five minutes….and then I suggest you come back here and start telling the truth. Okay?”
d) At page 12 the Tribunal says, “No. Stop treating the tribunal like we are silly and we don’t know what happens in the world.”
e) At page 14 the Tribunal says, “I don’t regard a qualification from Australia as having any particular significance in Bangladesh” indicating a closed mind.
The Court finds that the Tribunal’s decision was affected by apprehended bias, and that the hearing before the Tribunal miscarried. In the light of that finding, it is unnecessary for the Court to deal with the other raised grounds of review.
The applicants have established jurisdictional error on the part of the Tribunal.
The decision of the Tribunal is quashed, and must be re-heard by a different Tribunal member.
The Court will hear the parties as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 October 2022
SCHEDULE OF PARTIES
MLG 2374 of 2018 Applicants
Fourth Applicant:
MS FAIROUZ ZAHIN NUHAT
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