Singh v Minister for Immigration
[2016] FCCA 2343
•21 September 2016
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 |
| 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 were made by the Registrar giving the applicant until 30 October 2015 to file and serve such further material, including the transcript of the proceedings, that he sought to rely on. The applicant did not file any further material prior to the hearing of this matter. When the matter came before me for final hearing, the applicant tendered a recording of the Tribunal hearing. As the first respondent had no notice that the applicant would do this, it had not obtained a copy of the transcript. Subsequent to the hearing, the first respondent provided the Court with a copy of the transcript to use as an aid memoire when considering the recording of the Tribunal proceedings. This has been received as a Supplementary Court Book (‘SCB’).
Background
The applicant is a citizen of India. He first came to Australia in March 2009. At that time he was the holder a student visa.[2] He applied for a Skilled (Provisional) (Class VC-485) visa, this was granted and was valid for 18 months between 22 November 2012 and 22 May 2014. His application for the visa, the subject of this review, was made on 21 May 2014. His statement of reasons for wanting to study a Diploma of Marketing and an Advanced Diploma of Marketing, was that those courses would qualify him to be a team leader or supervisor in the automotive industry.[3] Since arriving in Australia, the applicant had completed a Certificate III in Automotive Mechanic Technology, a Certificate III in Automotive Specialist, a Diploma in Business, and a Diploma of Frontline Management.[4]
[2] CB p 68.
[3] CB p 24.
[4] CB p 147 at [26], p 144 at [12].
The Minister’s delegate refused the application on the basis that she was not satisfied that the applicant met the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
At the time of the Tribunal hearing, the applicant had commenced a Diploma of Marketing course which was scheduled to end in January 2016. He proposed to then undertake a Diploma of Management course which would end in August 2016.[5]
[5] CB p 147 at [27].
He was, at the time of the Tribunal hearing, working full time as a security guard with MMS Security.[6]
[6] CB p 147 at [28].
The applicant was invited to attend at the Tribunal hearing to give evidence and present argument. He was also given a copy of the relevant Ministerial Direction, Direction No.53.[7]
[7] CB pp 75-82.
The date fixed by the Tribunal for the hearing was apparently not suitable for the applicant’s representative[8] and accordingly the Tribunal wrote to the applicant advising that it had re-listed the matter for a later date.[9]
[8] CB p 83.
[9] CB p 91.
The applicant’s representative submitted materials to the Tribunal. Those materials included a statement of the applicant entitled “Statement Addressing Genuine Temporary Entrant Criteria”.[10]
[10] CB pp 102-104.
Tribunal hearing
The Tribunal hearing took place on 5 February 2015.
The applicant gave evidence. He was questioned closely by the Tribunal member about some aspects of his explanation for seeking to pursue further studies and the apparent change in direction of his career aspirations.
The issue was identified by the Tribunal as being whether the applicant met the criteria of cl.572.223(1)(a).
As it was required to do, the Tribunal had regard to the matters identified in Ministerial Direction No.53,[11] noting that the Direction was to be used as a guide only and not a definitive checklist. It kept in mind that the factors were to be used in weighing up the applicant’s circumstances as a whole.[12]
[11] CB p 144 at [9].
[12] CB p 144 at [10].
The Tribunal specifically acknowledged having received the materials forwarded to it on the applicant’s behalf and confirmed on two occasions that it had taken them into account.[13]
[13] CB p 143 at [5] and p 149 at [36].
The Tribunal considered all of the factors identified in Direction No.53 and not simply those identified by the applicant in his statement.[14]
[14] CB p 149 at [36].
The Decision Record discloses a lengthy and comprehensive recital of the applicant’s evidence. In particular, the Tribunal noted that it raised with the applicant a number of aspects of his evidence that it regarded as problematic for his case. It invited his response to those areas. Having considered the evidence of the applicant, the Tribunal made the following findings:
“… The applicant’s immigration and academic history however satisfies the tribunal that the applicant is strongly motivated to remain in Australia for employment reasons.”[15]
“The tribunal is also satisfied and finds that the applicant is attempting to use the student visa program to circumvent the intentions of the migration program.”[16]
“… The tribunal does not accept the applicant’s claim that his studies in management and marketing will assist him to obtain an operations manager or manager position in India. Such a claim appears as no more than a ‘throwaway line’ without substance. For similar reasons the tribunal places no weight on the documents provided by the applicant referring to a drug epidemic occurring in the Punjab.”[17]
[15] CB p 149 at [34].
[16] CB p 149 at [35].
[17] CB p 149 at [35].
The ultimate finding of the Tribunal was expressed as follows:
“On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).”[18]
[18] CB p 149 at [37].
For those reasons, it affirmed the decision under review.
Submissions
The applicant made brief oral submissions before me. In summary, his contentions were:
a)He had been prevented from telling the Tribunal everything he wanted to. In particular, the Tribunal member cut him off and did not permit him to fully answer. If he had been given an opportunity to explain in more detail, he would have put different matters to the Tribunal;
b)The Tribunal member had implied that he was not being truthful, but this was not reflected in the Decision Record;
c)The Tribunal was in error in concluding that he would not return to India; and
d)The Tribunal was mistaken when it concluded that he had given evidence that his uncle had told him to file a review application, whereas in fact, the position was that the applicant had already filed it.
It was implicit in these submissions that the applicant says, consistent with his grounds of review, that the conduct of the hearing was demonstrative of bias on the part of the Tribunal.
At the applicant’s request, the audio recording of the Tribunal hearing was played in Court.
The first respondent submitted that the interruptions by the Tribunal member were consistent with the inquisitorial nature of the proceedings and did not establish a closed mind on the part of the Tribunal. Ms Stokes, for the first respondent, submitted that whilst there were numerous interruptions, they were often directed at clarifying the responses of the applicant and directed at getting him to focus on the questions he had been asked. She submitted that the Tribunal was acting fairly when it directed the applicant’s attention to matters that it regarded as concerning or difficult to believe. In practical terms, the Tribunal was required to question the applicant closely about some matters and seek his response. Ms Stokes submitted that the pivotal question when considering an allegation of bias, was whether the decision-maker’s mind was open to persuasion. Even if the Tribunal made some factual errors, which was not conceded by the first respondent, that would not of itself establish either actual or apprehended bias on the part of the Tribunal.
For these reasons, Ms Stokes submitted that the application for judicial review should be dismissed.
Consideration
The grounds and submissions of the applicant raise the question of actual bias on the part of the Tribunal based on pre-judgment. The principles with respect to actual bias were with respect, thoroughly summarised by Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs.[19]It is appropriate to quote at length from his Honour’s judgment:
[19] [2003] FCA 872.
“18.In order to make out a case of actual bias on a decision-maker’s part, a person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (“Jia”), at 531:
‘The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.’
See also C v Minister for Immigration and Multicultural Affairs (2000) FCA 1649, at [2] per R D Nicholson, Finkelstein and Stone JJ.
19.A party alleging actual bias on a decision-maker’s part carries a heavy onus. The allegation must be “distinctly made and clearly proved”: see Jia, at 531 per Gleeson CJ and Gummow J and 546 per Kirby J.
20.The authorities apparently accept that, as von Doussa J observed in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, at [37]:
‘Whilst actual bias involves a state of mind which must be established by the party making the allegation, proof of an intentional state of mind adverse to the case of that party is not the only way of establishing it. Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including from the decision itself: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 126 – 127 per Burchett J and at 134 – 135 per North J; Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6; re Minister for Immigration and Multicultural Affairs; ex parte ‘A’ [(2001) 185 ALR 489 at 496-497]; and Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885.
…
A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality.’
21.A case of actual bias is seldom made out by reference solely to the reasons for a decision. A case may, however, be made out by reference to these reasons, as well as the decision-maker’s attitude and conduct (as, for example, in the course of a hearing preceding the decision): see, e.g., Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 (“Sun Zhan Qui”), at 134-135 per North J. The Court has inferred actual bias by prejudgment from various factors, including a decision-maker’s hostile approach to a party in a hearing, and a failure on his or her part to enquire into or obtain readily available and critically important information: see, e.g, Sun Zhan Qui, at 135 and SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591, at [26]-[27]. As Lockhart J noted in Sarbit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 (“Sarbit Singh”) at 9, any fact or circumstance that is said to indicate actual bias must be considered in the context of the whole case.
22.Certain of Lockhart J’s observations in Sarbit Singh are apposite in this case. At 6-7, his Honour said:
‘It is always difficult to explore the actual state of mind of a person said to be biased. Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn. …
…
When the ground of actual bias is that the Tribunal has prejudged the matter before the conclusion of the hearing, the transcript of the proceeding before the Tribunal will, of course, be important especially to determine the actual statements made by the Tribunal, the nature of the exchanges between the Tribunal and the parties or their legal representatives, and the context in which the statements were made … .’
Whether or not there has been actual bias by prejudgment is a question of fact.
23.This said, the authorities establish that a case of actual bias is not made out simply by showing that a decision-maker reached a preliminary view, even on a critical matter. Actual bias will be shown only if the preliminary view was incapable of alteration: see Jia, at 532 per Gleeson CJ and Gummow J. This must be so in the case of the Tribunal, since no hearing is held where the Tribunal has formed the view, on the papers, that a decision favourable to the applicant should be made: see the Act, s 425(2). The authorities show, moreover, that actual bias is not necessarily to be inferred from the fact that, during a hearing, a decision-maker indicated impatience and irritation, or adopted a discourteous and aggressive approach towards a party: see, e.g., Sarbit Singh, at 9-10; C v Minister for Immigration and Multicultural Affairs, at [13]-[16]; H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, at [12]; (2000) 63 ALD 43, at 46 per Branson and Katz JJ (a decision set aside by the High Court on a different ground). It will always be a question of fact and degree as to whether a closed mind can be inferred from any hostility displayed by the decision-maker in the course of decision-making towards a party or a party’s case.”
The mere fact that the Tribunal may have questioned an applicant vigorously does not of itself establish either actual or apprehended bias. The proceedings were inquisitorial in nature and the Tribunal member felt obliged to test the evidence.[20]
[20] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30].
As Ms Stokes rightly submitted, it was also necessary and fair that the applicant was confronted with aspects of his evidence which the Tribunal member found to be of concern.[21]
[21] Ibid at [30].
It is necessary to consider, and quote from in some detail,[22] the transcript of the hearing. It is apparent that the Tribunal member conducted the hearing in a highly inquisitorial manner and was both forthright and persistent in his manner of questioning.
[22] The formatting of the transcript has been changed for the purpose of this judgment in order to make it easier to read.
At the outset, the Tribunal member explained proceedings to the applicant. He informed the applicant that it was important to be as accurate as possible in his answers and not to guess if he did not know the answer to any question. The applicant was told that he could ask the member to clarify any questions if he did not understand them and that he could request a break in proceedings if he felt that he needed to speak to his representative.[23]
[23] SCB p 3, lines 16 – 27.
Shortly after he began questioning the applicant, the member advised him:
“Much of the purpose of my questions today is to clarify my understanding of your evidence. …”[24]
[24] SCB p 4, lines 11 – 12.
In his submissions before me, the applicant did not address with much specificity the answers or topics on which he says the member expressed doubt or did not allow him to properly answer. I will summarise the interjections and interruptions that appear to have been most significant. Some of the topics explored by the Tribunal member during the hearing were:
a)Why the applicant had not started study earlier than he did and why he had not obtained confirmation of enrolment until after the Notice of Tribunal hearing was sent to him;
b)Why he had changed direction in his study/career path;
c)Why he had not sought work within the automotive industry when he returned to India;
d)How he believed the proposed further studies would enhance his remuneration and employment prospects on his return to India; and
e)Whether he was pursuing work opportunities in Australia as his primary objective, rather than study.
It was appropriate and necessary for the Tribunal to broach these matters with the applicant.
The Tribunal invited the applicant to explain why he had delayed the commencement of his study. The applicant stated it was not due to the refusal of his visa and the member invited him to explain his other reasons for the delay. The applicant proceeded to give a lengthy answer that explained that the closure of his father’s business in Dubai, apparently due to having been tricked by one of his cousins into signing away his interests, at about the same time that the applicant’s visa was refused in Australia, had created a very stressful situation for him.[25] For that reason, he decided to delay the commencement of his studies and return to India whilst he pondered his future. He was considering going back to work for his father. He travelled to India for 10 days in September 2014 and spent some time with his mother, who was unwell.[26] It was there that his uncle, a former officer in the army, first raised with him the topic of the MSS Security Group.[27]
[25] SCB p 5, lines 15 – 24.
[26] SCB p 5, lines 25 – 30.
[27] SCB p 5, lines 30 – 34.
Up to this point, the applicant’s answer appeared to be responsive to the Tribunal’s invitation to explain the delayed commencement of his studies. On the applicant’s account, it was apparent there were complicated personal reasons for him doing so. At the point at which the applicant began to explain the link in his reasoning between the conversation with his uncle and his studies, he was interrupted by the Tribunal member:
“Question (‘Q’): I will stop you there. Mr Pal Singh, I am sure you have thought about this and perhaps even rehearsed what you are saying but that is not answering the question. We will get on to other matters later and I will give you plenty of time for telling me any matters I don't ask you about, but it is important that we focus on the questions?
Answer (‘A’): Okay
Q:So the question was about why you weren't studying between July and you have told me that your father was financially exploited, you were stressed, your mother was stressed. You went back to India for ten days. Is there any other reason that you weren't studying between July and December last year?”[28]
[28] SCB p 5, lines 35 – 45.
This was the first significant occasion in which the Tribunal suggested that the applicant was answering in a contrived and unresponsive manner. Given the open invitation from the Tribunal to explain his motivation, the observation by the Tribunal member, “what you are saying is not answering the question”, was not correct. The applicant then proceeded with his answer:
“A:Yes, well first of all that I was stressed and I came back and I checked the course and colleges and they all had intake starting in 2015. The first was the college which I took now. Over there the term was starting in January and the other college where I was studying before, over there the study was starting in the month of February so I opted for the one where the study was starting in January and - even the (indistinct) College where I did my automotive they do intake every month but they would book for our (indistinct) for the month of November and then they were going on Christmas break for two months, December and January, whereas the college where I applied now, where I am studying now, over there they had Christmas break for just one month, just for December and it started in January.”[29]
[29] SCB p 5, line 45 - p 6, line 9.
After confirming that the applicant had started his Diploma of Marketing in January 2015, the Tribunal then addressed the question of whether the enrolment in the course was simply a response to having received the hearing invitation. The Tribunal put the proposition to the applicant in the following way:
“Q:The confirmations of enrolment were only created after the tribunal sent you a hearing invitation. They were created in December, so I will take account of what you have told me about what happened between July and December but should I consider that the timing of you obtaining those confirmations of enrolment indicates that you simply enrolled for the purposes of this hearing and not because you believe the qualifications would be valuable to your future?
A:No.”[30]
[30] SCB p 6, line 16 – 23.
At this stage, the Tribunal had not heard the details of the applicant’s explanation about the discussion with his uncle. The exchange continued:
“Q:That is one view I could take is that we sent you a hearing invitation?
A:Yes
Q:And you didn't get enrolment?
A:Yes
Q:So did you want to provide any further response?
A:I totally understand if it just seems like that, now that wasn't a reason
Q:Have you ever been enrolled in the marketing and management courses before?
A:No
Q:Really?
A:No I have never done marketing - never done marketing before
Q:Have you ever been enrolled, was my question, in marketing and management?
A:I did enrol for – I mean in the month of May for a July course which was supposed to start in July 2014
Q:And should I consider that your failure to commence the courses when ostensibly you had the opportunity to do so indicates you are not a genuine applicant for entry and stay temporarily in Australia as a student?
A:No, that is not the reason because now I have a plan. Everything we've done (indistinct) it’s been on the plan, so it’s a part of a plan that I am going to set up my business over there in the security industry, regarding which I have done study (indistinct) needs to be done and my uncle who is going to sponsor me and who is going to financially help me, he has (indistinct)
Q:You have trained in automotive studies. You undertook two different certificate 3 courses in that field. I mean you say you want to run a security business in India so effectively those years of study towards the automotive area, are they wasted?
A:It was planned that I would go and help my dad in Dubai. He had a business over there which - I mean - which is under the - which is - he is going to settle that I was the guy who took over everything and we just (indistinct) with him (indistinct) going with him and then my dad going to come back to India so he will be, like, he will be helping me in India
Q:Yes, but you are not - that really doesn't provide me with too much detail, Mr Pal Singh. You spent some years studying the automotive area?
A:Two years
Q:Ostensibly you could have worked as a mechanic in that field. And then you change areas, you want to study security?
A: ---Ah ---
Q:So I might consider that you wasted those years and it indicates you are not a genuine applicant for entry and stay temporarily in Australia as a student?
A:I did try to find work in automotive if you see, and initially I wanted to work in automotive. I worked in automotive over here as well for six months
Q:That was the six months of the work experience, was it?
A:That is the only work experience I can provide you because after that (indistinct) terminated their business, and the business was ending, end of 2013 they closed their business and (indistinct)
Q:Mr Pal Singh, Mr Pal Singh, there is more than one automotive industry business in Adelaide, in Melbourne, in India. It is not like there is one automotive business and you have no other options - - - ?
A:No
Q:You must understand, what we are looking at is whether you are a genuine applicant. You are proposing to undertake studies now totally different to your previous field. You understand your visa has been rejected on the basis that there were concerns you were genuine?
A:Yes, I understand
Q:You are saying that you wish to pursue different studies so I am trying to explore whether - the reasons for this and what I should make of this because it is clear you are not - you are telling me you are not going to pursue automotive studies, you want to pursue the security industry. Do I understand correctly?
A:Because automotive - in the automotive I did try to find work with others but they all initially were saying that they want me to work for them for three to six months, again as a volunteer, which I could not - which I wasn't planning to do and which I refused, and that I can't work volunteer any more unless they give me paid work. But then - - -
Q:Mr Pal Singh, are you talking about search for work in Australia or India?
A:Initially to work in India because I had visa so I can't - while I have visa and work over here, and then I go back and help my dad in his business but in January 2014 we - when we came to know that they otherwise signed the papers and got all business in Dubai, then this owner started so - when I was like – I was under stress thinking. So in March when I went to India -last year, 2014, March, when I went to India I just went there and talked to my parents, said “What will I do?” I mean business is closed now over there. The main reason was that I - the (indistinct) which I did was (indistinct) the business and (indistinct) help my dad in Dubai
Q:Yes, I understand you have said that but as I have indicated I would suggest to you that there are many, many, many automotive studies businesses in India. I am asking you why didn't you go get a job as an automotive mechanic in India once you had completed your specialisation?
A:Yes, but then there was (indistinct) I mean it is something which then I didn't want to invest any more so that's how that happened
Q:Mr Pal Singh, “Didn't want to invest any more” really means nothing to me. I have indicated to you that the query is you have got training as an auto mechanic. Why didn't you go and work in India as an auto mechanic? You say, “My dad's business in Dubai closed.” That is not answering the question. Why didn't you work, take the opportunity, use your skills, get a job as a mechanic in India?
A:The thing is that what we - before I came to Australia was that this is how we are going to plan this - I mean I have learned this trade, and go to Dubai and help my dad over there because I don't want to - we got heaps of automotive shops in India so you can't - I mean - so then you invest in something which you will not be able to grow in and then you have - in the end you are closing that business and then thinking of starting something new, so that's what - where I was stressed. That's where my uncle helped me out and that's where he asked me to come back to India in September and as he is an army officer he just backed me up and he said “Don't give up on life, you (indistinct) on life, you have to go and just work hard."
Q:So should I consider your change in the area that you wish to pursue is not actually because you now wish to get into seriously - get into the security industry but it really is just an attempt to prolong your stay in Australia?
A:To be honest that is not what I am thinking of because I have been working with the same industry for past two years. I have gained experience whereas I don't have experience in automotive. I just got six months experience, and if you consider the experience, I have got more experience in security at the moment than that I have got in automotive so - experience is what counts everywhere so now with two years' experience and with the knowledge of how to grow my business out in the market, my business - - -
Q:Mr Pal Singh, Mr Pal Singh, you are working as a security guard, aren't you? You are not managing - are you a senior manager of this security - MSS?
A:No I am working as a team leader at hospitals, to manage the site
Q:Which hospital?
A:It is Lyell McEwin Hospital
Q:Sorry, which hospital?
A:Lyell McEwin
Q:Could you spell that for me?
A:1 will spell it for you. L-y-e-1-1 M-c-E-w-i-n
Q:Where is that located?
A:It is in Elizabeth. It's a big hospital
Q:But again it is a team leader's role. That role as an employee, I suggest, is quite different to you saying, “I now have the experience of operating, owning, establishing a security business.” You are not in there with the security firm arranging contracts with the hospital, doing the sorts of things that a senior person would be doing. You are on hands. You are in the hospital providing those security services, so I may not accept what you are saying is, “I really don't have experience in automotives, that is despite my two years full-time in that, despite my two years full-time training in that but I have experience in the industry field because I have worked in a hospital as a security guard and a team leader.” You can see how I might perhaps consider that to be without much substance potentially?
A:No but that is where this study is going to play the role which I going to start - which I am already doing, and at the end of this I will be, I mean, qualified enough so that I can go then at - be some operations manager or something. As my uncle, even he is highly qualified so he is going to help me out (indistinct). So it is not just going to be me and him. There is a few other people involved, there's - which we are going to hire over there.”[31]
[31] SCB p 6, line 25 – p 9, line 32.
By this stage, the applicant had managed to convey that his aspirations had changed as a result of his experience with MSS Security, and there was a plan with his uncle to operate a security business in India. That explanation was pivotal to the applicant’s claims to having a genuine desire to undertake further marketing and management studies.
The Tribunal member pressed the applicant on whether his primary motivation was to work full time rather than genuinely study. The following exchange took place:
“Q:And you continue to work full-time do you?
A:No, once - I mean - once I get my - I mean student visa then I will have only 20 hours working so I will discuss with them and - - -
Q:Right now, Mr Pal Singh, right now?
A:Yes
Q:In the present, are you working full-time?
A:Yes, I am working full-time with them
Q:I would have expected you to actually answer the question giving me the full explanation, not a half explanation, no “when studying, won't be.” You are right now and I would have thought that would be fairly obvious. I did indicate earlier that it was important that you not be evasive so I just remind you that I would have expected a clearer answer rather than having to pursue a number of questions in order to get the answer as to what you are doing currently. Now should I consider, taking into account you are working full-time, taking into account your evidence generally, that you are attempting to prolong your stay in Australia for the purposes of employment rather than improving your vocational skills?”[32]
[32] SCB p 9, line 44 – p 10, line 15.
It is correct that the applicant chose to answer that question at the beginning of this passage by reference to how he proposed to manage his working hours in the event that he obtained a student visa. This was not a direct answer to the question put at the beginning of the above passage. From the applicant’s perspective, there was a difference between managing his work and study life in the event that he was granted a student visa and the (then) present uncertainty of his circumstances in Australia in the absence of a student visa. However, the Tribunal took the view that he was being deliberately evasive.
A short time later, the Tribunal member observed:
“Q:… What I am teasing out is your motivation as to whether the course will have value for you, whether you are focused on the course, whether perhaps you are more interested in working and that is your reason for staying in Australia?”[33]
[33] SCB p 10, lines 31 – 34.
This may have been the intention of the Tribunal, but the process of interruption had still at that stage not allowed the applicant to complete his evidence as to the effect of his discussions with his uncle in India. The applicant appears to have been perfectly willing to give a full account of the events in mid-2014. As can be seen from the first passage, quoted above, it was the interruption by the Tribunal member that prevented him from doing so at that time. It was not necessary for the Tribunal member to ‘tease out’ the applicant’s motivations. He had demonstrated that he was more than willing to explain his motivations to the Tribunal. If there was any ‘teasing out’ required, it was because of the Tribunal member’s earlier interruptions of his answers. The use of the term ‘tease out’ itself, suggests the Tribunal regarded the applicant as being less than forthcoming in his evidence.
There were other passages in the evidence following this where the Tribunal member challenged the applicant about the responsiveness of his answers.[34]
[34] SCB p 11, lines 12 – 13, line 25 & line 34.
The applicant explained that it was his intention to start a security business in India with his uncle associated with healthcare. No such business was at that time being operated by the applicant’s father or uncle. The applicant then explained that his uncle had experienced working with a person in India who had a security business; wanted to set up his own security business; was interested in the applicant’s work with MSS Security; had financial resources to start such a business; and, intended to make contacts internationally.[35]
[35] SCB p 12, lines 8 – 17.
It was only at this stage, over half way through the hearing, that the applicant was able to flesh out in some detail the plan with his uncle relevant to his study plans.
The Tribunal member did not explore the extent of the uncle’s experience, or the extent of his financial resources. Whilst it was up to the applicant to make his own case before the Tribunal, he had been prevented up to this point from explaining his uncle’s plans and circumstances. It would have been a simple matter for the Tribunal to ask some questions in an effort to establish the feasibility of these plans in light of his uncle’s circumstances. Instead, the Tribunal took a sceptical, almost critical view of the evidence the applicant had just given.
“Q:You are moving away from your uncle has got some - from the army - but all of a sudden he has got some relationship with the security business but there is no business currently operating, but you, your father and your uncle will start a business and you are already referring to international marketing and you referring to health care around India. I mean we are not talking about a major business that is already in operation. You are talking about a small business that is going to be starting from scratch that doesn't exist now and you will be here for another, what, 18 months while you are doing some basic management and marketing courses?”[36]
[36] SCB p 12, lines 19 – 27.
When being questioned about why he had not yet returned to India to set up an automotive business (which was in part what the applicant had all along been endeavouring to explain), the applicant himself had a sense that he had not been permitted to tell the Tribunal in full detail the circumstances that had led to his present career aspirations. He said to the Tribunal:
“A:Sorry, Member, I just - I mean, I don't explain everything about Dubai because you asked me to stop, you say (indistinct), sorry. He had a (indistinct) of big trucks over there.”[37]
[37] SCB p 13, lines 6 – 9.
He then proceeded to explain why his father no longer wanted to invest in trucking.
The Tribunal member then asked the applicant if there was anything else he would like to tell the Tribunal which was relevant to his application. It was only at this point that the applicant was able to give a fuller account of the important September 2014 conversation with his uncle in India. On the applicant’s version, this conversation was a significant motivator for his subsequent actions. He also started to explain to the Tribunal how it came to be that he did not enrol until after he had been given notice of the Tribunal hearing, and how the Christmas break had made it impractical for him to start studies until January 2015. The Tribunal member questioned him closely on this evidence, appearing to doubt its plausibility and indicating that he might not accept his evidence on this point.[38]
[38] SCB p 14, lines 3 – 30.
It was at this point that a final topic was raised by the Tribunal. It arose from the applicant’s explanation about the conversation with his uncle and it was a direct challenge to the creditability of the applicant implying that he was fabricating his evidence. It is necessary to quote the entire passage.
“Q:And the other point I wanted to raise from your earlier evidence is that I find it difficult to accept that you - indeed there may be some explanation, Mr Pal Singh, but you say to me that you were in India in September and your uncle said to you, “You are a man now, you need to put these things behind you. Go back, file a review and wait for the outcome of the MRT hearing.” The difficulty with that is that the decision was made by the delegate on 18 June. You only had a very limited time to seek review. You had 28 days I think it was, to seek review, so I suggest that you did not apply to this tribunal in September or after September. 10 July we have got the acknowledgment letter so that would seem to contradict what you are telling me?
A:I mean I don't understand you
Q:I am just saying your evidence doesn't make sense. You applied to this tribunal for review on 10 July or earlier. You have told me that you only applied for review after your uncle said “Go back to Australia, apply for review and wait for the outcome?
A:No
Q:That was your evidence, Mr Pal Singh, and that is why I am putting to you that contradiction and giving you the opportunity of explaining the inconsistency or contradiction. What do you say?
A:No, I am sorry if you have got me incorrect but I didn't say that in September. He said to go and find the review now. He never said that in September. I said in September when I went to India he took me out to lunch for counselling where he said, “Don't worry, just go back, (indistinct) your studies and at least wait for the review.” He said “Wait for the review.” He didn't say “Go and find the review.” He never said that
Q:Mr Pal Singh, that is the note I have made of your evidence. That is the note I have made of your evidence, what you told me, so on the one hand you say, “I didn't say that” and yet I put to you that you did say that and that is the note I have made. So you can deny you said that but I would like you to accept that that is the case?
A:No. I am sorry if you have me incorrect. I never said that
Q:All right. Anything further you want to tell me?
A:No, (indistinct) I just want to say but I do apologise and I am sorry, Member, but I never said it like that, he asked me to go and find in September. He never said that to me in September. I told you that in September he just took for me lunch and there he just counselled me and he said - - -
Q:Okay, well I simply note that that is the note I have made. You say you didn't say it. I might consider you did say it and you have been inconsistent I have put that to you and you again deny that you have made that contradictory statement. That is where we are at with that. I will consider that issue. All right.”[39]
[39] SCB p 14, line 40 – p 15, line 37.
The Tribunal member was plainly wrong about the evidence the applicant had just given. The situation was, as the applicant politely explained to the member whilst he was being challenged. The impugned passage from the applicant’s earlier explanation is as follows:
“A:When I went back to India in September 2014 my uncle just took me out for lunch and he counsel me and he said, “You are a man. Things happen to everyone in life so you should not be giving up on things. Go back for your final review, wait for the decision and everything will be coming in your favour. Be optimistic”, and so far I did. I came back in September end from India. …”[40]
[40] SCB p 13, lines 36 – 41.
The Tribunal member clearly flagged that he would consider the evidence and whether it amounted to an inconsistency. It was quite apparent that, at least at the time of the hearing, he had formed a preliminary view that he had caught the applicant out in a significant fabrication, and that the applicant was refusing to acknowledge it.
The evidence given before the Tribunal must of course be read in the context of the Tribunal also receiving and considering the pre-hearing submission provided on behalf of the applicant.
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].
For the above reasons, I am satisfied that the Tribunal fell into jurisdictional error on the basis of apprehended bias.
However, in addition to the jurisdictional error I have just identified, there are other reasons outside of the grounds of the application which suggest the Tribunal fell into jurisdictional error. In my view, the error as to the applicant’s evidence also raises other questions of procedural fairness and a failure to exercise jurisdiction by conducting a review. The Tribunal was required to conduct a review of the decision.[44] It purported to do so. It was required to invite the applicant to appear before it to give evidence and present arguments relating to the decision under review.[45] It obviously did invite him to attend for that purpose. The requirements in ss.348 and 360 can only properly be complied with if the applicant is accorded procedural fairness. That necessarily requires the Tribunal to make a decision based on the evidence before it. If an applicant gives evidence, the Tribunal is required to make its decision either in favour of or adverse to an applicant’s case based on the evidence he actually gave. The invitation to give evidence would be meaningless otherwise. Section 360 of the Act is expressed in terms almost identical to s.425. In considering the statutory obligation to issue an invitation pursuant to s.425, the Full Court of the Federal Court, citing Mazhar v Minister for Immigration and Multicultural Affairs[46], observed that “the invitation must not be a hollow shell or an empty gesture.”[47] The Court held that the statutory obligation upon the Tribunal was to provide a “real and meaningful” invitation.[48] This obligation exists even where the Tribunal was unaware of the circumstances that would render the proceedings unfair. In this case, the Tribunal was clearly unaware of the fact that it had misapprehended an important aspect of the applicant’s evidence. Nevertheless, the invitation was rendered an empty shell or hollow gesture by the failure to consider what the applicant actually said. For that reason, it did not comply with the obligation under s.360.
[44] Section 348 of Migration Act.
[45] Section 360 of Migration Act.
[46] (2000) 64 ALD 395 at [31].
[47] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151 at [33].
[48] Ibid at [37].
That observation is not inconsistent with the proposition that the Tribunal was not required to accept uncritically everything the applicant said. Nor, in my view, does it amount to reading the decision of the Tribunal with an eye keenly attuned to error. The applicant’s evidence about the conversation with his uncle was pivotal to the explanation that he had not simply enrolled in further courses as a response to the hearing invitation. In the absence of specific findings about matters on which the Tribunal concluded the applicant had been untruthful or evasive, it is difficult to assess how much weight or significance the Tribunal gave to the misapprehended evidence. It may still have rejected the applicant’s claim had it not made the error. In this case, it is, “impossible to know whether the Tribunal’s assessment of the [applicant’s] credibility would have been different”[49] had it not misapprehended his evidence. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another[50], Kirby J described the problem in this way:
“[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.”
[49] VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79].
[50] (2004) 221 CLR 1 at [81].
The error I have identified cannot be dismissed as a matter of errant fact finding. For the reasons above, I am of the view that it has jurisdictional significance of the kind identified by Logan J in SZRHL v Minister for Immigration and Citizenship & Anor[51]:
“The end result of that errant fact finding may yet be that the Tribunal has conducted its “core function” of review in a way that is unreasonable …”
[51] [2013] FCA 1093 at [25].
In summary, the error made by the Tribunal gives rise to the possibility of apprehended bias. It occasioned procedural unfairness to the applicant in the way I have described. It cannot be said that the erroneous finding as to what he said in evidence could not have materially affected the outcome and the finding or assumption as to his evidence on the relevant point was unreasonable.
For the above reasons, I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 21 September 2016
1
14
3