Sharma v Minister for Immigration and Border Protection

Sharma v Minister for Immigration and Border Protection concerned the appellant's appeal against the decision of the Migration Review Tribunal (MRT) to affirm the Minister's decision to cancel his sub-class 573 (Higher Education Sector) visa. The Federal Circuit Court dismissed the appeal, which the appellant then sought to have reviewed by the Administrative Appeals Tribunal (AAT). The AAT dismissed the application for review, and the appellant appealed to the Federal Court. The appellant argued that the Tribunal member's conduct during the hearing gave rise to a reasonable apprehension of bias. The appellant contended that the Tribunal member assumed the appellant was guilty of making false statements, dismissed his evidence, and closed their mind to the appellant’s position. The appellant also argued that the Tribunal member was unreasonable in concluding that the appellant had attempted to alter the history of his enrolment in courses in Australia.

The court considered whether the Tribunal member's conduct gave rise to a reasonable apprehension of bias. The court noted that the Tribunal member did not seek to clarify what the appellant meant when he said he was "misguided" by the migration agent but rather expressed a view that the migration agent did not choose the course and consequently “It’s not ‘totally misled’”. The court found that the Tribunal member suggested that the major responsibility for the decision to enrol in hospitality lay on the appellant. The court concluded that the Tribunal member's assumption adverse to the appellant without a basis in his evidence was reflective of a mind closed to any position advanced by the appellant. The court further found that the Tribunal member's conduct in stage four of the hearing demonstrated a reasonable apprehension of bias. The court found that the Tribunal member was unreasonable in concluding that the appellant had attempted to alter the history of his enrolment in courses in Australia.

The appeal was allowed, and the orders made by the Federal Circuit Court were set aside. The decision of the MRT was also set aside, and the application for review of the decision to cancel the appellant’s sub-class 573 (Higher Education Sector) visa was remitted to the AAT for determination in accordance with law. The Minister was ordered to pay the appellant’s costs of the appeal and of the application for review in the Federal Circuit Court.