Singh v Minister for Immigration - [2016] FCCA 2343

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2343

Catchwords:
MIGRATION – Visa – student visa – allegation of bias on part of Tribunal member – apprehended bias – error as to evidence of applicant – procedural fairness – error effecting outcome.

Legislation:

Migration Act 1958 (Cth), ss.65, 348, 425 & 360

Migration Regulations 1994 (Cth), cl.572.223 of Schedule 2

Cases cited:

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 & (2001) 75 ALJR 982
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1
SZRHL v Minister for Immigration and Citizenship & Anor [2013] FCA 1093

Applicant:

BARINDER PAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 256 of 2015

Judgment of:

Judge Heffernan

Hearing date:

11 March 2016

Date of Last Submission:

11 March 2016

Delivered at:

Adelaide

Delivered on:

21 September 2016

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Ms C Stokes for the Australian Government Solicitors

ORDERS

There be an order in the nature of certiorari that the decision of the Migration Review Tribunal (as it then was) dated 19 June 2015 affirming the decision of the delegate of the first respondent made on 18 June 2014 rejecting the applicant’s application for a Student (Temporary) (Class TU) visa is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal, differently constituted, review according to law the decision of the delegate of the first respondent dated 18 June 2014 rejecting the applicant’s application for a Student (Temporary) (Class TU) visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 256 of 2015

BARINDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’), as it then was, dated 19 June 2015. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant was represented before the Tribunal by a registered migration agent.[1] He appeared unrepresented before this Court. The application raises two grounds, as follows:
“1.Tribunal officer kept on insisting that I was lying where as I have a copy of the audio recording that proves that what I said was correct and true.
2.I believe that the tribunal member’s decision was thus biased.”
[1] Court Book (‘CB’) p 143 at [5].
On 14 August 2015, orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2343
Decision Date: 21 September 2016

CaseChat Overview and Summary

This matter came before Judge Heffernan concerning an application by Mr. Singh against the Minister for Immigration. The core of the dispute revolved around the Refugee Review Tribunal's decision to refuse Mr. Singh's application, with Mr. Singh alleging that the Tribunal's conduct demonstrated actual or apprehended bias.

The legal issues before the court were whether the Tribunal had demonstrated actual bias in its assessment of Mr. Singh's evidence, and alternatively, whether a fair-minded and reasonably informed lay observer would apprehend that the Tribunal might have approached the evidence with a closed mind or in a non-impartial manner. This was particularly in light of a significant factual error made by the Tribunal regarding a conversation Mr. Singh claimed to have had with his uncle.

Judge Heffernan found that while the Tribunal did not make express findings of fabrication or dishonesty regarding Mr. Singh's evidence, it did make a significant factual error in its written reasons concerning a conversation with his uncle. This error, coupled with the Tribunal's general finding of evasiveness on Mr. Singh's part, led the court to conclude that a fair-minded and reasonably well-informed lay observer might apprehend that the Tribunal had not approached the evidence impartially. The judge noted that the Tribunal member had failed to check the audio recording or transcript of the proceedings when confronted with Mr. Singh's protestation about the misstated evidence, thereby perpetuating the error in its written decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal summarised the evidence of the applicant in considerable detail. Significantly, it dealt with the exchange about the conversation with the uncle at paragraph 24 of the Decision Record:“He said that his uncle spoke with him and told him to return to Australia to file the review and wait for the decision (referring to the tribunal process) …”[41] (emphasis added)[41] CB p 146 at [24]. As noted above, this was wrong. The Tribunal did not make any express finding that the applicant had fabricated this conversation, or that it demonstrated an inconsistency that reflected on his credit. The Decision Record shows that the Tribunal did not make findings as to the reliability, truthfulness or plausibility of specific aspects of the applicant’s evidence. It expressed its findings in terms of not being satisfied of the applicant’s genuine intentions towards study and its satisfaction that he was attempting to use the student visa program to circumvent the intentions of the migration program. Nonetheless, given the manner in which the hearing was conducted, and the exchange which occurred over this part of the evidence, the erroneous finding as to his evidence was significant. This is particularly the case given the Tribunal’s general finding of evasiveness on the part of the applicant:“… His answers at hearing on that issue were largely evasive. He referred to an original plan to assist his father in an automotive shop in Dubai however that purported plan changed such the applicant now claims that he will return to India and with his father to establish a security business. Despite asserting that there are many auto shops in India the tribunal is not satisfied the applicant in fact sought employment as an automotive mechanical (sic) in India. His answers at hearing, and his evidence generally, avoided answering the particular question of why, having studied for a number of years towards commencing in (sic) automotive business, he simply changed his mind and now wishes to commence a business in which he has no formal qualifications. Such a significant change in direction without appropriate explanation weight heavily towards considering the applicant not to be a genuine applicant for entry and stay temporarily in Australia as a student.”[42][42] CB p 148 at [30]. The evidence given at the hearing, and the manner in which it was conducted, can be considered in light of the erroneous finding as to the conversation with the uncle and the general, but very clear, finding on the part of the Tribunal, that the applicant had been evasive. I am not persuaded that the Tribunal acted in a way that demonstrated actual bias on its part. However, in my view, it is possible that a fair minded and reasonably well informed lay observer aware of the content of the Tribunal hearing, the manner in which it was conducted, and the ultimate findings made by the Tribunal, might reasonably apprehend that the Tribunal might have approached the evidence of the applicant in a way that was not impartial or with a closed mind.[43] This is particularly so for this reason. The applicant’s evidence about the conversation with his uncle can be clearly heard on the audio recording of the proceedings. It is, obviously enough, starkly apparent in the transcript. Faced with the applicant’s protestation that he had misunderstood his evidence, the Tribunal member cannot have checked either the audio or the transcript and instead relied on his erroneous notes and/or his false recollection. This must be the case not simply because the Tribunal repeated the error in its reasons, but also because the exchange between the applicant and the member was so significant that one would have expected the member to have addressed his misapprehension of the evidence had he discovered the error. [43] Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27].

Ratio Decidendi

Legal Principle Established

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