Singh v Minister for Immigration
[2019] FCCA 2679
•26 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2679 |
| Catchwords: MIGRATION – Student visa application – bias – where first applicant completed two courses in hospitality and failed to complete another – where first applicant had worked as production manager for many years – where first applicant enrols in Diploma of Nursing immediately prior to expiry of Graduate Training visa – where Tribunal concludes first applicant is not a genuine applicant for entry and stay in Australia temporarily – where Tribunal undertakes rigorous inquiry – where Tribunal conducts hearing using forthright language – whether Tribunal was entitled to conduct hearing in a robust manner – applicable principles – where Tribunal was not so committed to a conclusion that its mind was incapable of alteration – bias not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 353, 360, 476 Migration Regulations 1994 (Cth), regs.572.223, 572.322 |
| Cases cited: ABG16 v Minister for Immigration and Border Protection [2018] FCA 369 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 BKB16 v Minister for Immigration and Border Protection [2017] FCA 1019 Burgess v Minister for Immigration and Border Protection [2018] FCA 69 Ebner v Official Trustee (2000) 205 CLR 337 Jatin v Minister for Immigration and Border Protection [2019] FCA 150 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re JRL: Ex parte CJL (1986) 161 CLR 342 Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 Singh v Minister for Home Affairs [2018] FCA 1718 SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70 SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Tribunal; Ex parte H (2001) 179 ALR 425 Webb v The Queen (1994) 181 CLR 41 Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654 |
| First Applicant: | BHUPINDER SINGH |
| Second Applicant: | REKHA PARMAR |
| Third Applicant: | ARUNDEEP PARMAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINSTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 298 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 September 2019 |
| Date of Last Submission: | 17 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr N. Wood |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 19 August 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 298 of 2017
| BHUPINDER SINGH |
First Applicant
| REKHA PARMAR |
Second Applicant
| ARUNDEEP PARMAR |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINSTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 19 August 2019, the applicants seek judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 19 January 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Student (Temporary) (Class TU) visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, I have concluded that although the Tribunal hearing was conducted in a robust manner, its decision was not tainted by apprehended bias. The Tribunal was entitled to form a provisional view that it disbelieved the applicant’s claim and was not satisfied that he genuinely intended a temporary stay in Australia.
Background
The first applicant, a male citizen of India aged 42 years, first came to Australia on 28 June 2008 holding a Student (Class TU Subclass 573) visa. It is convenient to refer to him as the ‘applicant’ hereafter.
From details provided by way of personal particulars for a character assessment, the applicant identified that he had been born in Shimla where he had variously worked, in the period 1999-2007, as a tour organiser and booking officer and porter in a family hotel business.
In 2009-2010, the applicant completed a Certificate III course in Hospitality (Commercial Cookery) and an Advanced Diploma of Hospitality Management. The applicant said that, having completed these courses, he intended to undertake higher education in business. However, he did not do so. Although he enrolled in a Bachelor of Business, (Hospitality Management), PRISMS records indicated that the applicant had not undertaken any study in that course.
From March 2009 until at least 2015, the applicant worked in an import/export business as a production manager in a full-time position. While the applicant had also worked for short periods as a cook, he said that as a vegetarian he found working with meat and seafood revolting.
On 11 August 2010, the applicant applied for a Temporary Skilled Graduate (Class VC subclass 485) visa. His nominated occupation for that visa was cook. As appears below, the applicant claimed that he only made the decision to apply for this visa on the basis of advice received from a migration agent.
On 25 September 2013, the first applicant was granted a Temporary Skilled Graduate (Class VC subclass 485) visa with a nominated occupation as a cook. That skilled visa expired on 25 March 2015.
On 24 March 2015, the applicant applied for the Student visa so as to undertake a Diploma of Nursing. The applicant’s wife and child were nominated as secondary visa applicants. It is this application that is the subject of the present decision under review. Throughout the period of this application, including before the Tribunal, the applicant was represented by his migration agent.
By letter dated 26 March 2015, the Department requested that the applicant provide evidence addressing the temporary entrant criterion. The Department’s request for evidence stated in part:
I note you have recently applied for a Business Sponsorship visa to undertake the role of Production Manager, can you please explain why you [have] now chosen to study Nursing.
On 24 April 2015, the applicant’s representative provided the Department with a statement signed by the applicant in which he provided an explanation for having not pursued further study in the period 2010-2015. By that explanation he attributed the decision to having acted on advice he received from his migration agent. He stated:
Requiring assistance in extending my student visa to complete my Bachelor degree, I acquired the services of Mr Aftab Mohammed, a Migration Agent with SOZ Migration Services, located at 343 Little Collins Street. Mr Mohammad, based on my recently completed Advanced Diploma studies, suggested I apply for a Temporary 485 visa instead of the Bachelor Degree program. Based on his recommendation and assistance, I submitted my 485 visa on 11th August 2010. It is for these reasons that I did not pursue a Bachelor of Business and I confirm that up until speaking with Mr Mohammad I had every intention of pursuing a higher education course.
In summary then, by the time of the Tribunal’s decision in 2017, the applicant had been in Australia, on different visas, for almost a decade. In 2008, he arrived in Australia on a Student visa. In 2013, he was granted a Skilled Graduate visa with a nominated occupation as a cook. One day before the applicant’s Skilled Graduate visa was due to expire, he applied for a Student visa to study nursing doing so on the advice of his migration agent. During a substantial part of that period, he had been employed on a full-time basis as a production manager. Counsel for the applicant quite properly accepted that these matters were not in dispute.
Delegate’s decision
On 7 May 2015, a delegate of the Minister refused to grant the application and gave reasons for so doing. The delegate found that the applicant did not meet the requirements in cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Relevantly, cl 572.223(1)(a) of the Regulations required the Minister to be satisfied that the applicant was a genuine applicant for entry and stay as a student because:
The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicants immigration history; and
(iii) . . .
(iv) any other relevant matter; and . . .
Given the applicant’s study history, his potential circumstances in Australia, his immigration history and the lack of value the course he was studying was to his future, the delegate found that he was not a genuine applicant for entry and stay as a student who intended to stay in Australia temporarily. The delegate further found as follows:
a)the applicant had previously completed an Advanced Diploma of Hospitality Management and had been enrolled in a Bachelor of Business but had never attempted any study in that course;
b)the applicant had been named on two occasions as a nominated employee for a Temporary Business Nomination application with a nominated occupation of Production Manager (Manufacturing);
c)one of those nominations was under review by the Migration Review Tribunal at the time of the delegate’s decision;
d)the value of the new course of study to his future was questionable; the applicant’s proposed course of study in nursing being unrelated to: his previous studies; his stated occupation in his Temporary Skilled Graduate application and; his nominated occupation in his Temporary Business Nomination application;
e)although the applicant had provided a statement in response to the Genuine Temporary Entrant criterion, he had not provided any substantial reasons for studying nursing (being a field unrelated to his previous employment or education);
f)the applicant had been in Australia for nearly seven years on temporary visas or associated bridging visas;
g)it was five years since he had completed his last course of study;
h)it appeared as though the applicant had only decided to recommence studying for the purposes of the visa application rather than for reasons of any genuine interest in nursing.
The delegate concluded that the applicant had not provided any substantial reasons as to why he had chosen to study in a field unrelated to his employment or academic background and was not satisfied that he genuinely intended a temporary stay in Australia. The delegate also took into account that, while the applicant intended to work only part-time as production manager so as to be able to pursue a course of study in nursing, his nomination for a full-time position as production manager remained outstanding. The delegate further had regard to the applicant’s study history, potential circumstances in Australia, immigration history and the lack of value of the nursing course to his future.
As the applicant did not satisfy the criteria of cl 572.223(1)(a) of the Regulations, the second and third applicants (being his wife and child) did not satisfy the requirements of cl 572.322(b).
Tribunal’s decision
On 26 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. Although the Tribunal immediately invited the applicant to provide material or written arguments for its consideration, he provided nothing at that stage.
As the Tribunal determined that it was unable to make a decision favourable to the applicant on the material before it, on 15 August 2016, it invited him to attend a hearing on 30 August 2016 in order that he might have an opportunity to give evidence and present arguments relating to the decision under review. Again, the Tribunal invited the applicant to provide material in support of his visa application, and noted that he should have regard to the delegate’s reasons in providing any further materials.
On 23 August 2016, the applicant’s migration agent provided the Tribunal with a number of documents, including a signed statement by the applicant and numerous academic records. The contents of that statement were, in substance, copied from the statement provided by the applicant with his visa application. Amongst the documents provided was a letter from Job Training Institute Pty Ltd which stated that the applicant had commenced his Diploma of Nursing on 6 May 2015 and was expected to complete that course on 4 November 2016.
On 30 August 2016, the applicant attended a hearing before the Tribunal with his migration agent and the assistance of a Hindi interpreter. At the conclusion of the hearing, the Tribunal noted that the applicant was only six weeks away from completing his course of study in nursing and for that reason stated, while unconvinced the applicant was a genuine student, it would consider the submission from his migration agent and not make a decision for a period of at least six weeks.
On 19 January 2017, the Tribunal affirmed the decision to refuse to grant the visa and provided a statement of reasons for that decision (Reasons) to which was attached a copy of reg 572.223 of the Regulations. While it was accepted that the background to the application was adequately set out in those Reasons, it is the manner of the conduct of the hearing that is the catalyst for the present application.
In its Reasons, the Tribunal summarised the applicant’s claims as presented at the hearing:
a)the applicant cancelled his enrolment in a Bachelor of Business (Hospitality) with Victoria University and enrolled at Carrick Institute as it offered the same course for about a third of the price, even though the course at Carrick was unable to provide a degree: [21]-[22];
b)when the Tribunal noted that the work the applicant had done as a Production Manager was not in hospitality, his field of study, he provided a statement dated 22 August 2016 which explained that he found it difficult gaining employment in hospitality and that he found working with meat revolting: [26]-[27];
c)the Tribunal asked the applicant about how he had coped with his aversion to meat whilst studying cookery and working at an Italian restaurant, and why he had not studied in India if his interest was vegetarian cooking: [28]-[30];
d)after noting that the applicant had another visa application under consideration by the Department, the Tribunal informed him that it believed he was seeking to remain in Australia and was not a genuine student: [31]-[32];
e)the Tribunal believed that although the applicant had given evidence that he came to Australia to complete studies in hospitality and was given a Skilled Graduate visa to gain experience in that field, the reason why he did not get work experience in hospitality was because he was already employed in a totally unrelated field as a Production Manager: [35]-[37];
f)the Tribunal believed that the applicant’s continuing employment provided a strong incentive for him to remain in Australia: [41];
g)the Tribunal noted that the applicant’s employment history differed to that presented in the statement dated 22 August 2016, found that this statement was intended to deceive it, and that the applicant was not a reliable witness: [42]; and
h)the Tribunal concluded that, as the applicant had been in Australia for over eight years and his last study in hospitality was in 2010, his decision to study nursing was made only when his Skilled Graduate visa was due to expire, was motivated by a desire to attempt to remain resident in Australia: [43]-[44].
The Tribunal found:
The applicant has been in Australia for over eight years. His last study in hospitality was in 2010. He was then granted a 485 visa on which he had full study rights. He chose to commence studying a Diploma of Nursing only when his 485 was expiring some five years after he had previously studied.
The Tribunal concluded that the applicant’s study history was not that of a genuine student and having regard to his circumstances as a whole, was not satisfied he was a genuine applicant for entry and stay as a student or that he genuinely intended to stay in Australia temporarily. The Tribunal found that the applicant did not meet the requirements of cl 572.223(1)(a) of the Regulations and affirmed the decision under review. Having found that the primary visa applicant did not meet the essential criteria for a student visa, the Tribunal affirmed the decision to refuse the applications of the secondary applicants: [45]-[50].
Procedural history
On 16 February 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant’s legal representative to which she exhibited copies of the Reasons and the transcript of the Tribunal hearing.
By a Response filed on 6 March 2017, the Minister opposed the application on the stated basis that the decision under review was not affected by jurisdictional error.
On 16 August 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions.
Once 16 February 2017, the applicant’s solicitor affirmed an affidavit to which was exhibited a transcript of the hearing conducted by the Tribunal on 31 August 2016 (transcript).
On 19 August 2019, the applicant filed an amended application together with written submissions.
Having regard to the matters raised by the amended application and the content of the transcript, the court made a request for the provision of an audio recording of the Tribunal hearing.
The applicant’s solicitor affirmed a further affidavit on 27 August 2019 to which was exhibited a USB containing an audio recording of the hearing conducted by the Tribunal (recording).
The hearing of the application for judicial review occurred in essentially four phases. During the first phase, the audio recording was played and counsel for the applicant and Minister respectively took the opportunity to pause the playing of that recording and make submissions in relation to particular matters. In the remaining phases, submissions were made by counsel for the applicant, the Minister and, the applicant in reply.
Consideration
The application for review contained two grounds of review. In short compass, the applicant complained that the process by which the Tribunal conducted the hearing was such that its decision was tainted by apprehended bias (Ground 1). It was further said that the Tribunal failed to grapple with important parts of the applicant’s evidence (Ground 2).
Apprehended bias – applicable principles
The parties were agreed as to the applicable principles. The following propositions are largely taken directly from their respective submissions.
Apprehended bias operates in support of the maintenance of confidence in administrative decision-making. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process, which is an element of the lawfulness of the outcome.
Allegations of apprehended bias are assessed by reference to the hypothetical construct of the informed fair-minded lay observer.[1] It is an aspect of the rules of procedural fairness and is directed to the necessity for executive power to be exercised, and to appear to be exercised, fairly. As a breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution,[2] this court may grant relief for a breach of that obligation.[3] Where apprehended bias exists, the decision-maker cannot fulfil his or her statutory function. In the result, where a decision is made it is be affected by jurisdictional error (such decision being no decision at all).[4]
[1]Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
[2] Cf SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70, [26] (Cowdroy J).
[3] Act, s 476(1).
[4] SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70, [26].
To establish apprehended bias based on prejudgment, the applicant must prove that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the determination of the application for review.[5] A challenge based upon apprehended bias must be “firmly established” or “clearly proved”.[6] It is insufficient that the observer may have “a vague sense of unease or disquiet” about the decision-making process.[7] To those ends, the court must apply “realistic criteria” in determining whether or not there was an apprehension of bias. The Tribunal’s proceedings are inquisitorial, which is different to civil litigation before a judge where parties are representing their own interests through lawyers.
[5]See, e.g., Ebner v Official Trustee (2000) 205 CLR 337 at 344-345, [6]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [27]-[32]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, [14].
[6]See, e.g., Re JRL: Ex parte CJL (1986) 161 CLR 342, 352 (Mason J); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [69] (Gleeson CJ and Gummow J); Singh v Minister for Home Affairs [2018] FCA 1718, [35].
[7]Burgess v Minister for Immigration and Border Protection [2018] FCA 69, [36].
The test has been restated as being whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the court might not bring a fair, impartial and independent mind to the determination of the matter on its merits.[8] This formulation of the test brings to attention the need to qualify the objective fair-minded lay observer by attributing to them such knowledge so as to be appropriately informed of the relevant facts and circumstances, including importantly, knowledge of the statutory framework within which the allegation of bias is being raised. The lay-observer assessing possible bias is taken to be aware of the nature of the decision and the context in which it was made, with knowledge of the circumstances leading to the decision.
[8] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [35].
Importantly, the rule against bias does not require the absence of any predisposition or inclination for or against an argument or conclusion.[9] The underlying principle is that the Tribunal ought to have (and be perceived to have) an open mind, not that it must have an empty mind:[10] “[t]he question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”.[11] It must appear that the decision-maker remains open to persuasion until their function is completed. Thus, the applicant must show that the bystander might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion (e.g., that the applicant was not a genuine student) as to be incapable of alteration, whatever evidence or arguments the applicant might present.[12] The test is objective.
[9]See, e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [72] (Gleeson CJ and Gummow J).
[10]See, e.g., SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223, [38], citing The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 554; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [72].
[11]See, e.g., Jia Legeng, supra (2001) 205 CLR 507, [71]; Singh, supra [2018] FCA 1718, [35].
[12]Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1, [32]; Jia Legeng, supra (2001) 205 CLR 507, [72]; BKB16 v Minister for Immigration and Border Protection [2017] FCA 1019, [25]; Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654, [67].
The qualifying words “fair-minded” play a central part in the assessment. They direct attention to an assessment of the behaviour of a person in a position to exercise power in respect of 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. One way in which unfairness, or the appearance of unfairness, may be apparent is if the decision maker is seen not to be open to persuasion, or has approached their task with some premature determination of some or all issues.
In making an evaluative judgment as to whether a Tribunal’s conduct gives rise to apprehended bias, the court must recognise that the Tribunal is entitled to engage in a “robust and forthright testing” of an applicant’s claims and evidence.[13] In that context, it is apt to have regard to the inquisitorial role of the Tribunal, which the bystander is taken to be aware of.[14] As the Full Court has observed: “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”.[15] In particular, an expression of disbelief of particular evidence does not of itself give rise to apprehended bias: in context, it may be a permissible way of inviting an applicant to address a concern.[16]
[13]See, e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [31].
[14]Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1, [24].
[15]NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, 269 (Allsop J, Moore and Tamberlin JJ agreeing); Jia Legeng, supra (2001) 205 CLR 507 at 179-180 (Hayne J); BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683, [86].
[16]See, e.g., ABG16 v Minister for Immigration and Border Protection [2018] FCA 369, [27].
Just as robust or vigorous questioning is permitted, and may be called for, occasional displays of impatience and irritation, whether justified or not, do not necessarily amount to disqualifying bias. However, such displays may be one particular of an apprehension of bias, and may in themselves support an apprehension depending on the seriousness of the display. Sustained ill-temper can give rise to a reasonable apprehension of bias. Yet, questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court; what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. A relevant consideration is whether other language was available to test the claims or evidence of an applicant, as opposed to the harsh and definitive language actually used.
As the Full Court explained in Sharma v Minister for Immigration and Border Protection:[17]
. . . [T]he Tribunal, in the performance of its statutory task of review under the Act is not precluded from testing the applicant’s case by posing questions which challenge the version of facts put forward by the applicant. That question may be robust and even confrontational . . .
The nature of the assessment by the Court of whether a hearing is affected by apprehended bias is governed by the need to strike a balance between competing requirements of the legal system. On the one hand, a too demanding a standard for decision-makers will have a chilling effect on the exercise of their function as independent decision-makers . . . On the other hand, a too lax standard applicable to decision-makers will threaten the confidence of the public and the parties in the fairness of the process of the system. (Emphasis added)
[17] (2017) 256 FCR 1, [24]-[25].
While “the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude”,[18] the reasonable bystander would appreciate that decision-makers “sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”. [19] Also, the court, in assessing whether the Tribunal has by its words or conduct “crossed the line” such as to give rise to apprehended bias, is not blind to the evidence presented to the Tribunal. In particular, a reasonable lay bystander may take into account, in assessing the Tribunal’s conduct, that the Tribunal was being presented with an apparently weak case.[20]
[18] Sharma, supra (2017) 256 FCR 1, [24].
[19] Sharma, supra (2017) 256 FCR 1, [22].
[20] Sharma, supra (2017) 256 FCR 1, [60]-[61].
Particular reliance was placed upon the recent statements of principle in Jatin v Minister for Immigration and Border Protection[21] (a case in which both counsel appeared). There Mortimer J explained:
. . . In an inquisitorial setting such as that before the Tribunal, it is important that the Tribunal is able to express doubts it has about an applicant’s evidence or the consistency of narratives given by an applicant, or the reliability of information or other material presented to the Tribunal. If the Tribunal does not test that material, there is no one else to do so. If the Tribunal does not make an applicant aware of its concerns, its concerns may go unaddressed and unanswered.
On the other hand, as the authorities disclose, there will be a line – to be drawn on findings of fact on judicial review by a court based on the evidence and circumstances of each particular case – beyond which the Tribunal’s inquisitorial method trespasses into prohibited areas . . . It may be because the nature of the questioning or its style, suggests the Tribunal has prejudged the outcome of the review as a whole or certain aspects of its fact-finding, denying the applicant the fair hearing to which she or he is entitled. The evidence may prove that during the very opportunity which the applicant has for persuasion, the Tribunal has already closed its mind . . . (Emphasis added)
[21] [2019] FCA 150, [9]-[10].
It is a question for judgment, including by reference to matters of impression, in determining when expressions of opinion by a decision-maker have crossed the threshold into creating the appearance of predetermination. As counsel for the applicant submitted, this can be a difficult judgment to make, and will depend on all of the circumstances of a particular case. A balance is required to be struck between a 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.
In the ultimate analysis, the court is required to assess, objectively, whether a lay-observer with awareness of the nature of the decision, the context in which it was made and with knowledge of the circumstances leading to the decision, might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion as to be incapable of alteration – whatever evidence or arguments the applicant might have presented. I apply these principles to the application.
Ground 1
Ground 1 of the amended application was supported by two particulars. The first particular to Ground 1 reads:
a. During the course of the Tribunal Hearing, the member made comments that were overtly offensive, unnecessarily combative, made constant interruptions, misstated the Applicant's evidence and demonstrated that he had pre-determined the outcome of the review, prior to making his decision on the review.
By way of overview, it is apparent that the Tribunal, conscious of the history of the visa applications, work history and change from the study of hospitality to nursing (while working as a production manager), considered the case to be weak and undertook a robust inquiry of those matters. As stated above, I have examined the transcript in detail and listened to the recording of the hearing at length. While the Minister was correct in submitting that the Tribunal adopted language that was, on occasion, forthright the inquiry was conducted in a robust manner with a view to consideration of the issues arising on the decision under review. Central amongst those issues was whether the applicant was a genuine applicant for entry and stay in Australia as a student.
As noted, the question to be addressed and answered upon an application of bias based on prejudgment is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the determination of the application for review. And as observed in the course of argument, since the applicant must prove that a fair-minded lay observer might so view the matter, it is perhaps distracting to employ amplifiers that characterise and isolate particular passages in the transcript of a hearing as sexist, presumptuous, insulting or belittling. The issue whether the decision was tainted by apprehended bias is to be answered upon the stated test, not by reference to some other inquiry. It would delay the determination of such applications if the court was separately required to make affirmative findings as to whether the impugned conduct also bore the multiple characters sought to be assigned to it by either of the parties.
In my view, the matters raised by particular (a) of Ground 1 invite the court to draw a conclusion that the Tribunal’s conduct bore the character that the applicant sought to assign to it. However, as an allegation of apprehended bias must be distinctly alleged and proved, I have treated that particular as serving as a general introduction to the more detailed matters that are detailed beneath particular (b).
Specific complaints as to manner of hearing
The second particular to Ground 1 reads:
b. The following comments would lead a fair-minded lay observer to reasonably apprehend a lack of impartiality with respect to the decision:
By this particular, the applicant made the distinct allegations upon which reliance was placed in support of the claim of apprehended bias.
Seven matters were addressed beneath particular (b). There was a lack of correspondence between the impugned aspects of the Tribunal hearing as particularised in the application for judicial review and those which were addressed in the applicant’s outline of submissions. While it is convenient to address each of the impugned passages from the transcript in turn, as was made clear in the course of the hearing, the application fell for determination upon an evaluation of the conduct of the hearing as a whole. The present case stood in contrast, for example, with one in which a singular and isolated event had been relied upon as giving rise to an application for apprehended bias.[22]
[22] Cf, Webb v The Queen (1994) 181 CLR 41.
While I note the Minister’s submission that some risk was posed in being required to respond seriatum to the particular exchanges complained of (inasmuch as it remained necessary to assess the complaints in context and to consider the case as a whole), each of the matters which were the subject of distinct complaint must be considered. As it was also agreed that the principles require an assessment of the Tribunal’s conduct over the hearing as a whole, it is necessary to consider each of the individual matters the subject of complaint with that ultimate objective in mind.
It is also to be borne in mind that in the course of the hearing, counsel for the applicant took the opportunity to make submissions as to particular aspects of the transcript of the hearing but was also content to rely upon the written submissions without requiring that the whole of the recording be played in open court.
For the sake of completeness, it is useful to make some observations on other parts of the hearing which were not particularised as being the subject of discrete complaint. While I have addressed these matters in chronological order, it has been necessary to maintain the distinction between those matters which were contained in the amended application and those which were merely referred to in the applicant’s submission.
In the event, no further objection was raised to the manner in which the complaints of apprehended bias had been framed and I have considered each of the matters that were relied upon together with other aspects of the hearing in the sequence in which they occurred.
Commencement
At the outset, the Tribunal invited the applicant to explain why he believed that his visa had been refused. In that context, the applicant was referred to the delegate’s decisional record and his attention was drawn to the principal conclusions reached by the delegate as to why she had not been satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student. This was not the subject of complaint.
Tone of initial exchange
To provide some context to what followed, I note that at pp. 2-5, the Tribunal explored the applicant’s previous training and experience, including his work in a family hotel business in Shimla that involved marketing, acting as a porter and bringing food to guests.
By his written submission, the applicant complained of the exchange from p. 1, line 42 to p. 2, line 9. It was said that the Tribunal commenced the hearing in an insufficiently serious manner, asking whether the applicant having arrived in Australia “for hospitality” was “to eat in good restaurants”. While accepting that this was objectively minor, it was said to set the tone for the hearing as being something other than the serious and solemn occasion that the applicant was entitled to expect.
For the Minister it was said that the Tribunal was clearly seeking to press the applicant for detailed explanations as to his intentions and actions: pp. 1-3. It was accepted that it may have been safer and perhaps more appropriate for the Tribunal to seek to elicit such evidence in a different manner, but it was said that the applicant did not demonstrate apprehended bias merely by alluding to the apparent frustration that lay behind the Tribunal’s choice of words, or tone.
Having listened to the recording, it is clear that the Tribunal was concerned to proceed to the issues arising in the decision under review without delay and to go immediately to the substantive reasons why the delegate had refused the application. It was accepted that the Tribunal was entitled to form a preliminary view as to the matter, and to have expressed its scepticism in relation to the genuineness of the application for a visa to study nursing, having regard to the applicant’s prior training, experience and study.
I do not consider that this exchange was indicative that the hearing was not being taken seriously. Rather, it was confirmatory of the somewhat informal manner in which the hearing was conducted. The Tribunal was authorised to conduct the hearing in that manner.
Schooling
By his written submission, the applicant complained of the exchange at p. 6, line 21 and following, where the Tribunal engaged with the applicant in relation to when he finished secondary schooling in India. Upon being told that the applicant had not finished school at age 17-18 (later stating that he had been aged ‘20 plus’) the Tribunal stated “What were you a slow student at school?” Allied to this complaint, the first particularised matter, the subject of complaint was as follows:
i.20 plus? Goodness gracious me. A threat for some of the young girls in your classroom, I would've thought (Transcript p. 7, line 12)
On p. 7, line 11 and following, when the applicant stated that he had finished his secondary schooling at age “20 plus”, it was said that the Tribunal diverted into an offensive and humiliating discussion about the applicant being a “threat” to young girls in the classroom and apparently criticises him for being an “old man” at the time of finishing his secondary schooling. I accept that the reference to a threat to younger students was ill-advised.
This was said to be ‘utterly unacceptable’ as being sexist, presumptuous, insulting, and most importantly apt to belittle the applicant in relation to his capacity to achieve academically, which was relevant to the issue in the review of whether he was a genuine student.
For the Minister, it was said to be entirely appropriate for the Tribunal to be seeking to explore these matters: (a) given the nature of the visa criterion at issue; (b) since the applicant’s credit was clearly in issue. It was said to be unsurprising that the Tribunal was sceptical both at the suggestion that the applicant was “20 plus” when he finished school, and as to the vague terms in which this evidence was expressed. From my examination of the transcript and consideration of the recording, I agree that the Tribunal appeared to react to the answers that were being given and to the somewhat vague responses that were being given.
Having listened to the recording, it is also clear that the Tribunal was somewhat surprised as to the answers that were being given, particularly when told that the applicant had finished school at age “20 plus.”
Viewed in isolation, I agree in the Minister’s submission that while the Tribunal’s language was perhaps injudicious, it did not demonstrate that the Tribunal was incapable of persuasion or that it had a closed mind. The robustness of the exchange is self-evident. It occurred in an inquisitorial environment where the Tribunal did not have the assistance of counsel but was required to conduct the hearing for itself. The Tribunal’s probing of the topic of completion of the applicant’s secondary edge on occasion may be understood as arising in the context of the applicant’s repeated applications for student visas in Australia.
To gain some appreciation of the events which followed, I note that from pp. 7-10, the Tribunal made inquiry of the applicant of his activity in the 12 year period between finishing school and coming to Australia. Further, the Tribunal explored the applicant’s courses of study in Australia during which, with the assistance of the applicant’s migration agent, he clarified the precise courses that had been undertaken. For the Minister, this was said to demonstrate the Tribunal’s mind was not closed. I agree. To the contrary, in this part of the hearing, it was fairly observed that the Tribunal was giving the applicant an opportunity to improve his case by giving detailed explanations that had not been given previously as to why he chose to undertake particular courses in Australia in light of his educational and vocational background in India. These aspects of the hearing invite consideration also that a well-informed lay observer would be aware of the content of the applicant’s submissions, including those made at the time of his application.
Application for 485 visa – acting on advice of migration agent
The Tribunal also confirmed that the applicant had stopped studying in June 2010 and that his visa was due to expire in August 2010. Against that background the Tribunal also explored the applicant’s evidence that he had only applied for a 485 visa upon the advice of his migration agent.
By his written submission, the applicant complained of the exchange on p. 10, line 33 and following. It was said that while the applicant was starting to develop his evidence about a claim that his former migration agent had led him astray, the Tribunal commenced “a sort of homily about his pre-determined views in relation to individual responsibility” during which the Tribunal had told the applicant that he was “not a child anymore” and had then “[torn] into the applicant about having raised the claim: “Why?” “What for?” “You screw your mouth up so I don’t know”. The relevant exchange was as follows:
Well the thing that troubles me, I’ve got to say, Mr Singh, it troubles me greatly, are people that come here and, [say] “It was the agent that [told] me do it or told me to do it.” You’re not a child anymore. At this stage, you’re 34, 35 years old. You come here to study hospitality because you want to take your uncle to give you his share of the business and go back home and start your own business.
You’ve done all the hospitality studies, done all you’ve come here for; it’s time to go home and set up our business and get things up and running and get the family off and going. Oh no, but Astav Mahomed said to me, “But what you should do is apply for a 485 visa.” Why? What for? You screw your mouth up so I don’t know.
For the applicant this was said to be very troubling and as indicating that the Tribunal plainly had predetermined views about the legitimacy of a complaint at having been misled by a migration agent (perhaps based on experience in other cases). While it was accepted that for the Tribunal to draw on experience from other cases was not illegitimate, it was said to be illegitimate to presume that the applicant’s claims fitted within the unhappy examples of such earlier experiences without at least hearing him out. The difficulty in this complaint was that the terminal point of what the applicant described as a “monologue” entailed a series of questions and to which it appeared the applicant did not respond.
Further, it was said to be difficult to understand why the Tribunal should have had any inherent difficulty with a claim that the applicant had sought out, received, and followed the advice of a migration agent, particularly as the “[migration] industry is regulated by the Commonwealth and exists in part to assist prospective visa applicants select which migration options to pursue.” It was further said that having received poor advice was of no legal relevance for the visa option that was ultimately pursued. It was also said to be a potentially decisive consideration in weighing up whether a person was a genuine student. By his written submission, the applicant also complained of the exchange on p. 13, at line 43, where it was said that the Tribunal had again criticised the applicant for having acted on the advice of his migration agent. It was submitted that these views of the Tribunal in some degree might have been influenced by a personal view about the importance of individual responsibility and self-determination (even in the face of conflicting professional advice). However, it was pressed that such views were “not universal in an individualistic society such as Australia with deep traditions of professional standards and responsibility by professionals, let alone in other parts of the world where cultural expectations call for subservience to authority.”
Contextually, in the course of the hearing at pp.11-13, the applicant had been asked why, having completed his courses in hospitality, he had not responded to the migration agent’s advice by stating that he would be returning to Shimla to establish a hospitality business. From my examination of the transcript and consideration of the recording it is apparent that the applicant was non-responsive to this enquiry, instead stating that his schedule was “very tight”. The Tribunal then pressed the applicant for an explanation of why his schedule was “very tight”. As to this, the Tribunal also enquired as to why, having obtained a 485 visa he had worked as a project manager rather than in hospitality. He was also asked for further detail as to the nature of the work he had undertaken in hospitality in circumstances where, being a vegetarian, he said that he would not touch any form of meat or fish. Again, the applicant’s responses appeared to attribute his employment choices to advice received from his migration agent. The Tribunal’s robust and sceptical questioning was self-evident, and perhaps explicable having regard to the objective background facts and circumstances.
For the Minister, it was said to be obvious that this was a potentially troubling part of the applicant’s case in circumstances where his previous written explanation had given no account of “this radical shift in his trajectory: he went to a migration agent to seek to obtain an appropriate student visa, and came out seeking an application for a skilled visa.” While it was accepted that applicants might well place trust in skilled professionals, no explanation had previously been given as to why the agent advised him against applying for a student visa, or why the applicant accepted that advice. It was submitted that nothing in this part of the transcript supported a conclusion of prejudgment, rather than recording what the Tribunal (understandably) considered was a troubling aspect of the applicant’s history in Australia.
It was also said to be unsurprising that, having spoken of his vegetarianism and aversion, when working as a cook to dealing with meat, the Tribunal expressed surprise that the applicant would pursue a career in “commercial cookery” in Australia at all. Again, the applicant appeared to explain his decision based on the advice of others.
The Tribunal moved to explore why, after completing vocational courses in hospitality and purportedly intending to pursue higher education in that field, the applicant stopped studying and instead applied for a Subclass 485 visa. The exploration of this topic was explicable, particularly in the circumstance that the applicant had not employed that visa to gain experience in cookery, but had instead worked as a production manager in an import/export business named Ostindo. It was also explicable in circumstances where there was a pending application for Ostindo’s nomination of the role of production manager for a visa.
I accept that that the tenor of these exchanges were neither conclusory nor problematic. To the contrary and consistently with the statutory regime provided by s 360(2)(a) of the Act, the Tribunal was entitled to hold provisional views consistent with appropriate standards of practice, to put those views to the applicant and to hone in upon its specific concerns having regard to the changing nature of the applicant’s visa applications over the period he had been in Australia. The approach taken by the Tribunal was consistent with that identified by Mortimer J in Jakic, that troubling aspects of the visa application should be put to the applicant on review. This is what occurred.
Expressed disbelief as to genuineness
The passages upon which much emphasis was placed appeared at pp. 13-14. It is convenient to set them out in stages:
Interviewer: Right-oh. Here is where I start to have problems with your story Mr Singh, because the situation is, you say, “I was on a tight schedule. I finished my studies in June 2010. I got a 485 visa.” A 485 visa is there to allow you to get work experience in the field that you’ve studied. You don’t do that and the reason you don’t do that is because you’re working with Ostindo, not from June 2010 when you finished study. No. You started with Ostindo when, in 2009? March 2009 was it?
Respondent: Around March I think.
The applicant took no issue with the foregoing exchange. This was correctly accepted as appropriate puttage by the Tribunal having regard to the applicant’s courses of study, work history, credit and consideration of a central issue in the hearing; namely, whether the Tribunal should be satisfied that the applicant intended genuinely to stay in Australia temporarily as a student.
The second particularised matter, the subject of complaint was as follows:
ii.You are not a temporary student, Mr Singh (Transcript p. 14, line 17)
The statement as made by the Tribunal at p. 14 line 2ff was follows:
Around March 2009. So you, in fact, had been working with a company since 2009, for over a year, when you finish your studies and you get a 485 visa, and I don’t believe you ever had any intention to work in the experience of the hospitality industry which is where you came from, because you had a job working as the, what was it? The production manager I think you called yourself.
Now, not only that, reading from the primary decision, they nominated you for a full-time position as production manager. What’s going on? You’ve got somebody, you’ve got a business that you’ve worked for seven years, who says, “listen, let’s put in a visa application for you as a full-time production manager, because we’ll give you a job here and that’d be fabulous wouldn’t it?” And you say, “Yeah, that’s a good idea.”
How can you do that on one hand, and on the other hand turn around and you’d say, “No, no, no, no, no. I want a temporary student visa.” You’re not a temporary student Mr Singh. That indicates to me that what you want to be is that you want to live in Australia.
It is apparent that the impugned statement occurred in the context of expressed disbelief as to the applicant’s intention to employ his Subclass 485 visa to gain experience as a cook particularly where the applicant had worked as a production manager from 2009-2015.
By his written submission, the applicant complained of this exchange. It was said that the Tribunal’s ‘monologue’ extinguished any doubt that the Tribunal had concluded “you’re not a temporary student, Mr Singh”. It was further submitted that “[t]his spontaneous, reflexive remark would simply not have been made by a Tribunal that brought an open mind (cf it need not bring an empty mind to the hearing).”
For the Minister, it was submitted that for the Tribunal to have explored the applicant’s work performed over many years as a production manager was unremarkable, and that the Tribunal was correct to put its concern to the applicant: despite having spent two years studying hospitality in Australia, he then worked for many years in an unrelated occupation. Equally, the Minister accepted that, at this juncture, the Tribunal had indicated that it did not believe that the applicant genuinely intended to work in hospitality, or that he was a “temporary student” and that viewed in isolation, such statements had been expressed in a conclusionary form. Instead, attention was drawn to the fact that immediately thereafter, the Tribunal had stated that certain evidence “indicates” that the applicant wanted to live in Australia.
While there is no doubt that those statements were put forcefully to the applicant, contextually they were focused upon the fact that the applicant had been working as a production manager for at least 12 months before completing his studies and that he had continued in that work for many years. The Tribunal’s observations were directed in part to the fact that the applicant’s work was unrelated to gaining experience in the field of hospitality for which he had undertaken study. The Tribunal expressed its apparent incredulity that the applicant had obtained full-time employment as a production manager but that upon the expiry of his 485 visa had “on the other hand” turned around and applied for a temporary student visa to undertake study in nursing. I do not consider that such robust questioning by the Tribunal – which was left to pose such questions for itself – indicated that it had a closed mind to the question of whether the applicant satisfied the criteria in cl 572.223(1).
Change in work arrangements
By his written submission, the applicant also complained of the exchange at p. 14, line 5. I have set out that passage above at [82]. As noted, the Tribunal put to the applicant that in 2009 he had never held an intention to work, or gain experience, in the hospitality industry (ie contrary to the conditions of his subclass 485 visa). I do not accept that this was “highly prejudicial to the applicant’s interests in the review” or to be “highly indicative of a mind that was not interested in hearing the applicant’s evidence or arguments, and of a mind that might have had a predetermined view about this case.”
The third particularised matter, the subject of complaint was as follows:
iii.You don't make any decisions for yourself, do you? Everybody else makes decisions on your behalf? (Transcript p. 14, line 39)
The applicant submitted that his complaint respecting these passages were fortified “by the insulting statement made at p. 14, line 43 “You don’t make any decisions for yourself, do you? Everybody else makes decisions on your behalf?” and the insulting statement (especially given the tone, which was said to be sarcastic and belittling) at p. 15, line 19 line 24: “Oh no, I know what I’ll do, I’ll be a nurse. Hello? Why?” Next, it was said that the Tribunal had cut off the applicant in the middle of his giving a response and “commence[d] another monologue which is plainly inconsistent with giving the applicant a meaningful opportunity to give evidence and present arguments at the hearing” (line 30ff).
This exchange was said only to make sense if understood as indicating that the Tribunal had reacted emotionally and unprofessionally in response to evidence that conformed to its predetermined view that the applicant was trying to maintain ongoing residence in Australia.
Thematically, the passage is, in my opinion, reflective of the Tribunal picking up on the applicant’s earlier attribution of responsibility to a migration agent for having opted to apply for a subclass 485 visa rather than another student visa (as had been the applicant’s ostensible intention in consulting the agent at that time). In effect, the Tribunal put to the applicant that he had again assigned responsibility to others. While the exchange was robust it was not indicative of a closed mind.
Credibility as to interest in nursing
The fourth particularised matter, the subject of complaint was as follows:
iv.Oh yes, I live near a hospital too. It never prompted me to want to be a nurse or a doctor (Transcript p. 15, line 18)
This passage arose in the context of an inquiry as to why, having a family business in Shimla at which he could work, and employment in Australia as a production manager, the applicant had changed tack and decided to undertake a course of study in nursing. When the Tribunal asked the applicant why he had made this decision, he responded that there was a large government hospital on the top of the hill near his home. The Tribunal responded in the manner set out above.
This passage was not the subject of an oral submission.
I accept that as part of the inquisitorial process an obvious question was why in light of his educational and vocational history, the applicant had now elected to study nursing. Further, given the applicant’s response that his family home was near a hospital, the Tribunal’s reply may be clearly understood as expressing its failure to be persuaded by that answer. I consider that neither the Tribunal’s choice of words, nor the tone of the exchange, reasonably suggest a mind incapable of persuasion (as distinct from to a mind that was not presently persuaded). And it is also clear from the discussion which followed at p. 15-16 that the Tribunal afforded the applicant a further opportunity to discuss his aspirations to study nursing and the duration of his intended course.
Scepticism as to study of nursing
By his written submission, the applicant also complained of the exchange at p. 17, line 31 in what was described as “an extraordinary personal attack by the Tribunal upon the applicant when it stated, ‘I’ve got real problems with you, Mr Singh, I’ve got to say’.”
Contextually, as the hearing continued, when the Tribunal gave the applicant a further opportunity to explain his switch to an interest in nursing, the applicant instead brought the discussion back to his work experience in cooking. When the applicant confirmed that he had worked at Italian restaurants where meat had been handled, the applicant maintained that he had problems with handling beef and stated that “some of my buddies, they’re vegan.” This response appears to have been the catalyst for an enquiry as to completion of the nursing course:
Interviewer: Yes, all right. I’ve got real difficulties with you, Mr Singh, I’ve got to say. What have you got to say what do you want to tell me?
Respondent: I want to finish my nursing.
Interviewer: When does it finish?
Respondent: November.
Then followed a further exchange as to the precise date on which the applicant’s course of study in nursing would in fact finish. In the course of this exchange, the Tribunal pressed the applicant for a detailed response. By his written submission, the applicant also complained of the suggested lack of professionalism and departure from standards to be expected of an administrative decision-maker at p. 18, line 2 where the Tribunal stated “I couldn’t care less what your ID card says” and a little later that one might “toss a coin in the air” in seeking to identify the precise date on which the applicant’s course of study would finish. On any view of these remarks, the Tribunal had lost patience with the applicant in relation to his response as to the precise date on which his nursing course would be complete. The tone of the exchange was regrettable. It did not, however, indicate that the Tribunal had a closed mind to the issues arising on the decision under review.
Importantly, it should also be recognised that the Tribunal explicitly identified that the applicant would finish his course on 26 October and that he had paid substantial fees for his enrolment period: p.18. After making enquiry as to the nature of the employment undertaken by the applicant’s wife, the Tribunal asked: “Is there anything else you want to say?” This exchange also contra indicates that the Tribunal had a closed mind to the issues arising upon review of the delegate’s decision.
The Tribunal made the following statement at p. 19 line 31:
Do you know what I think? You came here to do some studies. You completed those studies. You then decided you’d get a visa that allowed you to do some work experience in the field that you worked in, but you chose not to work in that field, and the reason you chose not to work in that field, in my opinion, is because you already had a job.
You’ve had the same job now for however long it is, seven or eight years; it’s got nothing to do with any of the businesses that you say you want to study in or you want to be in. You’ve been a party to a visa application which nominates you for a full-time position as a production manager and you say, “Oh yeah, that’s cause, that’s what he says or whatever” it may be. And now you say, “What I want to do is study nursing.” What I’m telling you Mr – sorry?
To this the applicant replied “It’s the boss, he [unintelligible . . .].” While the applicant complained that his answers had been interrupted, on some occasions, the foregoing exchange indicates that the Tribunal was prepared to halt its own statements to listen to the applicant.
There can be no doubt that the views expressed by the Tribunal represented a summary of the applicant’s study and work history since he arrived in Australia. Objectively, the applicant had come to Australia to undertake study and had completed some of those courses. Equally, the applicant had obtained a Subclass 485 visa but had not used it to gain experience in the cooking skills which he had acquired by study. Further, the applicant had in fact secured employment as a production manager before completing such study and continued in that employment for many years. The Tribunal was also correct in observing that the work as a production manager was unrelated to his study of cookery. Moreover, the Tribunal was accurate in observing that the applicant’s employer had nominated him for a full-time position, which nomination was the subject of a pending visa application.
It is difficult to see how or why the Tribunal’s summary of those objective facts could be the subject of legitimate complaint.
Repetition of scepticism
The fifth particularised matter, the subject of complaint was as follows:
v.Mr Singh, the situation is I don't believe you're a genuine student. (Transcript p. 20, line 10)
Counsel for the applicant did not seek that this statement (or the remainder of the recording) be played, but was content to rely upon his written submissions.
Again, this statement should be considered in the context that immediately beforehand the Tribunal had enquired of the applicant’s migration agent whether there was anything which he wished to say. Regrettably, the transcript of the agent’s response is recorded as being largely “unintelligible.” However, further context to the Tribunal’s statement that it did not believe the applicant to be a genuine student is gained from the statements which then followed.
Having re-examined the transcript and audio recording as a whole, I do not consider the Tribunal’s expression of disbelief as to the genuineness of the applicant’s intention to study in Australia temporarily (or to study nursing) would indicate that a properly informed fair-minded lay observer might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion as to be incapable of alteration, whatever evidence or arguments the applicant might present. I am fortified in that view by the concluding exchange at the hearing.
Deferral of decision for six weeks
The sixth particularised matter, the subject of complaint was as follows:
vi.I don't believe your history indicates you're a genuine student, for the reasons that I've just mentioned to you. However, I have read a substantial submission from Mr Wilson and it makes sense because he happens to be an excellent migration agent. And he makes the case that the situation is this fellow is a genuine student he claims, I don't think I accept it but, and he's only six weeks away from finishing.
So the situation is that, I've got to say to you, I'm not convinced you’re a genuine student, however I'll accept Mr Wilson's submission and therefore it is my intention not to make a decision in this matter for at least a period of six weeks. (Transcript p. 20, line 15)
By his written submission, the applicant complained of this statement in the “extraordinary circumstance – at the time of the Tribunal hearing, the applicant had substantially completed his nursing course and indeed was only six weeks away from full completion of that course.” It was said that “[p]utting aside the obvious probative value toward being a genuine student that a person is near completion of a course of study, the Tribunal was minded to allow the applicant time in which to complete that course by deferring its decision for six weeks (p. 20, line 25).”
In my view, reading the transcript from p. 17, line 34 (when the Tribunal first enquired as to the date on which the nursing course would finish) and at p. 18, line 29 (when an enquiry was made as to the amount which the applicant had paid for his enrolment in the course) together with the comment that the applicant had “an excellent migration agent”, provide context to the impugned statement. These matters assist in explaining why the Tribunal said that, despite its disbelief, it would consider the agent’s submission before making a decision.
The final particularised matter, the subject of complaint was as follows:
vii.Well, the situation is that, Mr Wilson will explain to you what that decision means, but what I'm telling you is that I've made a decision that I won't be making a decision on this for at least six weeks and, well, no that's probably not a fair statement. (Transcript p. 20, line 32).
The applicant submitted that the troubling part about the matter was that, by the end of the hearing, the Tribunal had plainly closed its mind to the outcome, and that it had done so in circumstances where the review remained live for another six weeks. Although counsel for the applicant submitted that this complaint was not the most important of his arguments, for the reasons above I prefer a construction which allows that, while the Tribunal was presently unpersuaded of the merit of the application, it would consider the migration agent’s submission.
I accept the Minister’s submission that the Tribunal’s statement in the final phase of the hearing that it had “real difficulties” with the applicant’s case was both clear, and understandable, but that it was not probative of bias. I am confirmed in this view by the fact that this exchange occurred in the context that both the applicant and his agent were given an opportunity to make further submissions.
I consider that the Tribunal gave the applicant an opportunity to persuade it to be satisfied that he was a genuine applicant for entry and stay as a student in Australia temporarily. Such a conclusion is difficult to reconcile with a suggestion that the Tribunal was so committed to making a particular decision that its mind was incapable of persuasion.
Resolution
Upon my analysis above of the course of the proceeding before the Tribunal and for the reasons which follow, I do not consider that its decision was affected by apprehended bias.
The essential basis for the complaint in Ground 1 that the Tribunal’s decision was affected by apprehended bias was said to be that the Tribunal member had pre-determined the outcome of the case. As is apparent, the Tribunal clearly had concerns, in light of the applicant’s history, as to whether the applicant genuinely intended only to stay in Australia, temporarily, as a student. Those concerns were well open to the Tribunal on the evidence before it.
I also accept the Minister’s submission that the evidence available to the Tribunal, prior to the hearing on 30 August 2016, was such as to be capable of causing a reasonable Tribunal member to be concerned that the applicant did not intend to stay in Australia temporarily as a student. In this regard, it was common ground that the Tribunal had necessarily formed a preliminary view of the application and in relation to the issues arising in relation to the decision under review. Otherwise, it was not obliged to conduct the hearing in relation to the application where it considered that a decision favourable to the applicant could have been made on the basis of the material before it: Act, s 360(2)(a).
Further, it was in those circumstances that the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision: Act, s 360(1). As noted above, the applicant did appear at the hearing where he was represented by his migration agent. Though aspects of the hearing were undertaken in a robust manner, that was not true of the entirety of that hearing. To the extent that issues were explored robustly, this did not occur in a sustained manner as to support a conclusion that the decision-maker had predetermined the application.
It was also common ground that in conducting the review of the delegate’s decision, the Tribunal was not bound by technicalities, legal forms or rules of evidence and was to act according to the substantial justice and merits of the case: s 353(a)-(b). The recording confirms the Tribunal member adopted an informal style in the conduct of the hearing.
I accept that it is necessary to consider the whole of the transcript and audio file of the hearing rather than just particular passages. It is also necessary to have regard to the tone in which statements were made, not just the words spoken. The impugned passages appeared in the context of a hearing that occurred over 37 minutes. One feature of the case that should not be overlooked is that large parts of the transcript were not the subject of objection. Following the hearing of the application I have, as I was invited to do, again listened to the audio recording.
Mr Aleksov of counsel candidly accepted that a properly informed lay observer would be imputed with knowledge of the background facts and circumstances that are set out above. I have set out those facts in some detail when addressing the background of this application. As noted, those background facts and circumstances were not in dispute.
For the reasons explained by Mortimer J in Jatin, it was not only open, but also appropriate, for the Tribunal to expose those concerns – both in general and as to particular matters arising from the evidence – in order to give the applicant an opportunity to address them. That the applicant did not succeed in resolving the Tribunal’s concerns does not demonstrate that the Tribunal’s mind was incapable of being persuaded to a contrary view. The case was one in which an appropriately informed lay observer would recognise the shifting nature of the applicant’s work and study history over a period of many years, including that he was working as a production manager (a field quite unrelated to cookery) and was the subject of a pending separate nomination by his employer.
I also accept that on some occasions during the course of the hearing, the Tribunal’s language and tone reflected its significant scepticism as to veracity of the applicant’s stated intentions. And as the Minister submitted, perhaps at times, the Tribunal’s choice of language and/or its tone had been injudicious or even regrettable. In and of themselves, those matters do not establish that the Tribunal might reasonably be perceived to be incapable of persuasion.
It is well-settled that the test for apprehended bias “is only satisfied if the lay observer might reasonably apprehend that the decision-maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”[23] Equally, a decision-maker is not expected to be “free of a preliminary reaction or an inclination for or against [a] . . . conclusion.”[24]
[23]See Jatin v Minister for Immigration and Border Protection [2019] FCA 150, [8] (Mortimer J) citing Sharma, supra (2017) 256 FCR 1, [23].
[24] Ibid.
As the present case illustrates, the objective facts (which are to be attributed to a properly informed lay observer), may have been strongly supportive of a conclusion that was adverse to an applicant’s case. This circumstance does not deny the decision-maker’s entitlement to form a preliminary view which was adverse to the applicant. To the contrary, it serves to explain why that decision-maker is then obliged to put to the applicant the objective facts and afford him or her an opportunity to respond. In the nature of the process of review, some applications may appear to be demonstrably devoid of merit. Further, compelling facts adverse to an applicant may arise in the course of an application on review. To be confronted by such facts does not oblige the decision-maker not to be robust when asking an applicant to address those facts. The Tribunal’s mind was not expected to be “empty” of those objective facts. Nor was that of a well-informed lay observer. Equally, such lay observer would appreciate that some decision makers would be circumspect in their approach whilst others would be frank and robust.[25] By extension, that lay observer would not examine the question upon consideration of isolated passages of transcript but would have regard to the conduct of the proceedings as a whole.
[25] Jatin, supra [2019] FCA 150, [20].
To adapt the reasoning in ABG16 v Minister for Immigration and Border Protection, the Tribunal’s expression of disbelief of particular evidence did not of itself give rise to apprehended bias and in the context of this application, it was a permissible way of inviting an applicant to address a concern.[26] As Robertson J’s reasoning indicates, analysis of the relevant facts and circumstances may, objectively, provide the foundation for a provisional disbelief in the merits of particular issues. Where this occurs, the process of questioning an applicant (including in a robust manner) should nevertheless be understood as providing him or her with an opportunity to address the Tribunals concerns. This is what occurred in the present case.
[26][2018] FCA 369, [27] (Robertson J).
Insofar as the Tribunal, on occasions, spoke across the applicant it is to be recognised[27] that it was in control of its review and, within the boundaries set by s 353 of the Act as augmented by rules of procedural fairness applicable to the review of a Part 5-Reviewable decision, was entitled to act according to the substantial justice and merits of the case. By extension, a properly informed bystander would recognise that where a robust approach had been adopted upon a merits review, having regard to the known objective facts, a failure to adhere to best practice would not be determinative of a finding of apprehended bias in all cases.[28] While I have considered the individual aspects of the transcript and recording of the hearing, I have also evaluated the content of that hearing in its totality for the purposes of deciding the challenge based upon apprehended bias. I do not accept that the Tribunal was so committed to the conclusion that the applicant was not a genuine student as to be incapable of alteration, whatever evidence or arguments the applicant might have presented.
[27] Jatin, supra [2019] FCA 150, [24]-[25].
[28] Jatin, supra [2019] FA 150, [28]-[33].
Ground 1 is rejected.
Ground 2
By his amended application, the applicant added Ground 2. It reads:
The Tribunal failed to consider significant evidence in the Applicant's case.
PARTICULARS
a.The Tribunal failed to consider significant evidence in the case, relevant to whether the Applicant is a genuine applicant for entry and stay as a student, being that he had nearly completed the relevant course of study.
b.The Tribunal did not evaluate the significance of this evidence, and simply mentioned it to be a fact (Reasons [33], CB 403). That is a failure to grapple with important evidence.
In substance, the applicant contends that significant evidence in his case – being that he had nearly completed the relevant course of study – had not been considered by the Tribunal.
It may be accepted that it is probative of whether an applicant is a genuine applicant for entry and stay as a student that they have nearly completed their course of study: Regulations, cl 572.223(1)(a)(i), (iv).
The applicant submitted that the Tribunal did not evaluate the significance of this evidence but simply mentioned it to be a fact: see Reasons, [33]. The manner in which the Tribunal had dealt with the issue was said to constitute a failure to grapple with important evidence. Again, it may be accepted that a failure to consider important evidence may establish jurisdictional error. To that end, the applicant relied upon Minister for Immigration and Citizenship v SZRKT.[29] However, SZRKT was a radically different case from the present. There, as Robertson J observed, the relevant evidence was simply not mentioned.
[29] (2013) 212 FCR 99 (Robertson J).
I accept the Minister’s submission that in light of the transcript of the proceeding considered above, there is no credible basis to say the Tribunal had overlooked that the applicant would complete the nursing course within a matter of six weeks or the cost that he had incurred to enrolled in that course. The Tribunal prompted an enquiry upon this topic and was clearly conscious of it in deciding not to make a decision upon the application for a period of six weeks (being the period necessary for the applicant to complete the suggested course of study).
I also accept the Minister’s submission that a distinction is to be drawn between not considering evidence, and not being persuaded by it. In the present case, the Tribunal was entitled to give the fact of the applicant’s recent study little weight in light of the nature of the course and the applicant’s educational and vocational history. In making its evaluative judgment, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily as a student.
As cl 572.223(1) of the Regulations confirms, a criterion in the application for the grant of a Student visa is that the applicant is a genuine applicant for entry and stay as a student because he or she intends genuinely to stay in Australia temporarily. It is clearly the central criterion for the grant of a Student visa. The Tribunal undoubtedly addressed the applicant’s enrolment in his nursing course, the cost he had incurred and when the course would be completed. However, against the background of the applicant’s prior study and his experience, a significant part of the Tribunal’s inquiry was whether the applicant was a genuine applicant for entry and stay as a student.
The question of whether the applicant was a genuine applicant for entry and stay as a student was undoubtedly an integer of that claim, however, the Tribunal’s consideration of that issue in the course of the hearing proceeded on the basis that it was accepted the applicant had practically completed his nursing course and that he needed a further six weeks to do so. It cannot be said that the Tribunal failed to consider that issue.
Ground 2 is rejected.
Conclusion
For the reasons above, the application must be dismissed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 September 2019