Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 29
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 29
File number(s): MLG 3211 of 2018 Judgment of: JUDGE EGAN Date of judgment: 10 September 2021 Catchwords: MIGRATION – Application for Student Visa – whether apprehended bias on the part of the Tribunal member – finding that a fair minded observer would consider that the Tribunal member had not brought an open mind to the hearing – application granted – decision of Tribunal quashed. Legislation: Migration Act 1958 (Cth), s 360.
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212.
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76.
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102.
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 25 August 2021 Date of hearing: 25 August 2021 Place: Brisbane Counsel for the Applicant: Dr A. McBeth Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J. Barrington Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3211 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEJPAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
10 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 28 July 2021 be granted.
3.The decision of the Administrative Appeals Tribunal made on 2 October 2018 be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 2 October 2018.
6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a male citizen of India who arrived in Australia on 15 November 2013 on a Student (Temporary) (Class TU) (Sub Class 573) Visa.
The applicant lodged a further application for a Student Visa on 15 March 2017.
On 14 June 2017, a delegate of the Minister refused to grant the visa on the basis that the applicant did not genuinely intend to stay in Australia only temporarily, such that cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) was not met. Clause 500.212 relevantly provided as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
The applicant applied for review of the decision of the delegate to the Administrative Appeals Tribunal (‘the Tribunal’). On 7 August 2018, the Tribunal invited the applicant to provide information about his proposed course of study and his time spent in Australia as a student. Enclosed with that invitation was a copy of Ministerial Direction No. 69 which set out a number of criteria to be considered by a decision maker relevant to an application for the grant of a student visa.
On 11 September 2018, the Tribunal invited the applicant to attend a hearing before it. Documentation required to be provided in support of the application included a then current Confirmation of Enrolment (COE), as well as a statement addressing the issue of genuine temporary entry into Australia for the purpose of study. On 29 September 2018, the applicant provided the Tribunal with the requisite documentation in support of his application.
The applicant appeared before the Tribunal on 2 October 2018, at which time he gave evidence and presented arguments in support of his application.
On 23 November 2018, the Tribunal affirmed the decision of the delegate.
On 25 October 2018, the applicant filed an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
The applicant, by his lawyers, filed an Amended Application for Review on 28 July 2021, the grounds of which were as follows:
“The applicant relies on the following grounds in lieu of the grounds listed in his application filed on 25 October 2018.
1. The Tribunal failed to provide the applicant with a meaningful hearing as required by s 360 of the Migration Act.
Particulars
a) The Tribunal member conducted the hearing in a manner that did not provide a meaningful opportunity to present evidence and arguments to the Tribunal, to address the concerns of the Tribunal and for the Tribunal to be genuinely open to persuasion.
b) The Tribunal member was at times mocking, argumentative and accusatory.
2. The decision of the Tribunal was affected by a reasonable apprehension of bias.
Particulars
a) The particulars to ground 1 are repeated.
b) A reasonable lay observer of the Tribunal hearing might apprehend that the Tribunal member might have brought a closed mind to the hearing.
3. The decision of the Tribunal was based on an irrational finding.
Particulars
a) The Tribunal found that a document described as a business valuation by Mahey Architects and Engineers (‘Mahey Valuation’) was in fact, in effect, an audit of items of value found at the applicant’s parents’ property.
b) The Tribunal found that the Mahey Valuation was a fraudulent document, based on the Tribunal’s misunderstanding of what that document showed.
c) There was no basis in the evidence for the Tribunal’s findings regarding the Mahey Valuation.
d) The Tribunal’s findings regarding the Mahey Valuation materially contributed to the Tribunal’s assessment of the applicant’s credibility and its conclusion that the applicant had no business plan to open a garage upon return to India.”
Ground 1 of the Amended Application for Review was a claim that the Tribunal had failed to provide the applicant with a meaningful hearing, as was required pursuant to the provisions of s. 360 of the Migration Act 1958 (Cth) (‘the Act’). It was asserted that the Tribunal member conducted the hearing in a way that did not provide a meaningful opportunity to the applicant to present evidence and arguments to the Tribunal, it having been claimed that the Tribunal member was at times “mocking, argumentative and accusatory”.
Ground 2 of the Amended Application for Review was a claim that the decision of the Tribunal was affected by a reasonable apprehension of bias. The particulars to Ground 1 were relied upon in this Ground, and it was claimed that a reasonable lay observer of the Tribunal hearing might apprehend that the Tribunal member might have brought a closed mind to the hearing. [1]
[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] – [8] and [33] per Gleeson CJ,
When considering each of Grounds 1 and 2 of the Amended Application for Review, it is, with respect, appropriate to have regard to what was respectively said by Nettle and Gordon JJ, and Edelman J, in CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76 as follows:
Per Nettle and Gordon JJ [set out 68 – 70]
“[68] The rule against bias is a principle of procedural fairness, and "principles of procedural fairness focus upon procedures rather than outcomes". The rule against bias is designed to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process. As four members of this Court said in Michael Wilson & Partners Ltd v Nicholls:
"An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made." (emphasis in original)
[69] The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later.
[70]Next, the test for apprehended bias does not rest on a finding of actual bias or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision. One needs only to find that the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits.”
…
Per Edelman J [set out 132 – 136]
“[132] The test for a reasonable apprehension of bias is a test of a "double might": whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial and independent mind to the fair resolution of the issue to be decided. The notion of independence and impartiality is not limited to prejudgment of the issue. It is a "recognition of human nature" and "human frailty". It can include any other "preponderating disposition or tendency" and can arise by matters that create emotions of sufficient strength to sway opinion: "affection or enmity", "fear, hatred or love".
[133]The prism through which a reasonable apprehension of bias is tested, a fair-minded lay observer, is a familiar legal construct used for objective assessment. The construct assumes that the person is "intelligent". The person will be aware of the phenomenon that in adjudication, as in life generally, the mental plasticity of human decision making is subject to the unconscious
"stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. ... Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person]".
[134]In Webb v The Queen, Deane J, who was not dissenting on this point, described four overlapping categories of apprehended bias. The submissions on this appeal focussed upon the fourth category: "cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias". But some of the matters mentioned in the second category were also submitted to be relevant: "conduct, either in the course of, or outside, the proceedings", including the published reasons of the Authority.
[135] Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision maker to "confirm, enhance or diminish the existence of a reasonable apprehension of bias".
[136] In assessing whether a reasonable apprehension of bias arose through the construct of the fair-minded lay observer, the nature of the decision maker is a relevant consideration. When assessing whether the presence of the irrelevant material could have given rise to a reasonable apprehension of bias, the Authority should not be equated with a judicial officer, whose "independence and security of tenure" might permit a more robust approach to be taken to any possibility of influence from material provided by senior officers of the Executive Government and whose "training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". On the other hand, a professional decision maker in a specialised area, such as the Authority, should not be equated with a purely lay body such as a jury.”
(footnotes omitted)
The Court has had regard to the judgments of Allsop CJ and Robertson J in the Full Federal Court decision in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 where, at [4] and [91] respectively, it was said by their Honours:
ALLSOP CJ
“[4] A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.”
…
ROBERTSON J
“[91] Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account…”
Further, in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [82] it was said by Kenny J:
“[82] I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 (“Applicant VCAT of 2002”): see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant’s claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant’s claim when the hearing commences: see s 425(1)-(2). The vice in this case was that, by the Member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim - that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member’s questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”
The Court finds that there were a number of respects in which the Tribunal member appeared to have either pre-judged the issue at hand, or overstepped the mark in the way in which he participated in dialogue with the applicant. Much of that dialogue concerned questions asked by the Tribunal member concerning the contents of a certification made by Aggarwal Rajesh & Associates Chartered Accounts dated 28 September 2018, [2] and a valuation report prepared by Mahey Architect Designer dated 27 September 2018, [3] each of which were documents put forward by the applicant in support of the proposition that plans for future commercial utilisation by the applicant of family owned premises in India had been the subject of discussions between the applicant and his father. Notwithstanding that on a number of occasions the applicant had answered, or attempted to answer, questions put to him by the Tribunal member on the basis that the documents posited the taking of future action, the Tribunal member proceeded to ask questions or make comments on the basis that such documents reflected an existing factual reality, interrupting the applicant in the process.
[2] Court Book (CB) pp 97 – 98.
[3] CB 99 – 102.
The transcript of the Tribunal hearing was annexed to an affidavit of one Carina Ford filed on 28 July 2021. [4] The following are excerpts from the transcript which have led the Court to find that “ … a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change [the Tribunal member’s] mind about his claim - that he had fabricated his account” :
[4] Annexure ‘CF-1’ to the Affidavit of Carina Ford.
T. 1.21 – 2.11
“Tribunal Member: Good. Then what I want you to do is to tell me why you believe the delegate made the decision to refuse your application.
Mr. Singh: Because that time, I was enrolled in Certificate IV in accounting. I did Certificate IV and diploma in accounting. After that I switched my study to automotive. I did two years in Chisholm, TAFE. I've told my admins that I'm not [crosstalk]
Tribunal Member: You did two years at Chisholm, TAFE?
Mr. Singh: Yes. Certificate IV and diploma.
Tribunal Member: That was only one year but anyway the Certificate IV started-
Mr. Singh: Yes.
Tribunal Member: You arrived in Australia on the 15th of November 2013. Your Certificate IV in accountancy started on the 10th of February 2014, and it went until the 30th of June, 2014. Then your diploma of accountancy went from the 7th of July 2014 to the 21st of December 2014. That enrolment was cancelled. However, go on please tell your story. What I'm interested in knowing is telling me why you believe that the delegate refused your application.
Mr. Singh:Because they might think I'm not genuine, but I'm a genuine student, I did—
Tribunal Member: I'm not interested in you telling me what you think and I'm a genuine student. What I'm trying to work out is to make sure that you understand why they made the decision they made.”
…
T. 2.30 – 4.12
“Tribunal Member: What you say here in the most recent statement that you have provided, "Upon completion of my secondary education, my father guided me to pursue a career in business or accounting. That is why I came here to study accounting. I started with Certificate IV, which was going to lead to a bachelor's after diploma. I failed most of the subjects of certificate and diploma due to failure in most of the modules. I felt embarrassed and depressed and thought to leave. I assure that I did put a lot of hard work and dedication to score good in Certificate IV and diploma."
Mr. Singh: Yes.
Tribunal Member: Do you mean that?
Mr. Singh: Yes.
Tribunal Member: If that's the case, I've got a question. You've provided us with results of Certificate IV and diploma. In the diploma, it shows that you studied four units. You failed three of them and one of them was withdrawn after the census date not attended.
Mr. Singh: Yes.
Tribunal Member: I assure you I've put a lot of hard work and dedication to score good—
Mr. Singh: Yes.
Tribunal Member: You didn’t put too much work and dedication into that, I wouldn’t have thought. In the Certificate IV in 2014, you managed to pass nine of the 18 subjects, failed five of the 18 subjects, and four of them, inadequate participation (withdrawn). What does that mean, do you think?
Mr. Singh: I didn't cope up with Certificate IV and diploma.
Tribunal Member: You didn't what?
Mr. Singh: Cope up. I didn't get the desired scores.
Tribunal Member: No, no, no. What I'm asking you is, what do you think inadequate participation (withdrawn) means? I'll tell you what it means. You either didn't go to classes, didn't submit assignments, didn't take any interest in the classes. When that's what the results are, I look at somebody who says, "I assure you that I put a lot of hard work and dedication to a good score." I don't believe those two things can both be true. I don't believe that someone that put all the hard work and dedication gets a result that says "inadequate participation", meaning I didn't come to classes or didn't put in assignments.
Mr. Singh: My attendance was good.
Tribunal Member: No, it wasn't.
Mr. Singh:I've already passed some of the modules in Certificate IV and the diploma.
Tribunal Member: Yes, you passed some of them.
Mr. Singh:Some of them are very difficult to get good scores that's why I failed. (interrupted)
Tribunal Member: How do you know that if you didn't bother to participate? Inadequate participation (withdrawn). Then in the diploma, you don't pass one unit for the year and you say you were working hard. All right, so you say, "This is not my goal, accounting. What I'll do is I'll go and do automotive." When did you stop studying the diploma of accounting?
[pause 00:09:40] What this shows, the evidence you've provided is that you did the Certificate IV in accounting in 2014 and then three units of a diploma in 2014 and one unit in a diploma in 2015. That's when you withdrawn after census date non-attended. I presume you didn't do any study in the diploma of accounting after 2014. Would that be correct?”
…
T. 4.24 – 7.11
“Tribunal Member: Yes. It says, "This is to certify that Tejpal Singh fulfilled the requirements, started the course on the 19th of the 12th, 2015, successfully completed on the 29th of January, 2017." Then you did a Certificate IV in automotive mechanical diagnosis from February to August 17. Then you've done a diploma of automotive technician work from September 17 to June this year.
Mr. Singh: Yes.
Tribunal Member: My question is, what did you do between finishing the diploma of accounting in 2014 and starting the Certificate III in large vehicle mechanical technology in December 2015? There's a year there without studying. What did you do?
Mr. Singh: I take diploma of accounting in this period.
Tribunal Member: In what period?
Mr. Singh: From '14 to '15.
Tribunal Member: No, you didn't. No, no, no. That's what I've said to you. The situation is, what you've provided is evidence that you did the Certificate IV in accounting in 2014 and then you did the diploma, three units, in 2014. You failed them all. Then there was one unit listed for 2015 that you didn't start. You didn't do anything in 2015 in diploma of accounting. Then you started the automotive in December 2015. That's my question. What did you do before then?
Mr. Singh: I was studying diploma of accounting.
Tribunal Member: Sorry?
Mr. Singh: I was studying diploma of accounting in that year.
Tribunal Member: When?
Mr. Singh: In 2015.
Tribunal Member: Is there any evidence certificate?
Mr. Singh: I got COE.
Tribunal Member: You've provided me with evidence of all the studies you've done. I would have thought there would be evidence of your diploma of accounting since you didn't do any studying in 2015.
[pause 00:13:56]
Mr. Singh: I don't have the evidence of that diploma of accounting.
Tribunal Member: Interesting. What did you do in 2015?
Mr. Singh: I was studying in the college—(interrupted)
Tribunal Member: Well even if you were--
Mr Singh: --and I've got the transcripts.
Tribunal Member: You what?
Mr. Singh:I just sent you the transcripts for that, for diploma in accounting.
Tribunal Member: Which is that one?
Mr. Singh: Yes.
Tribunal Member: What that shows is that you did three of the units. Above that line, is the Certificate IV, below the line is a diploma. It shows diploma, diploma, diploma, three units, fail, fail, fail. They're all in 2014 then there's one unit in 2015, prepared financial forecast and projections. Withdrawn afte census date not attended. That indicates you didn't attend. Given what you have to say were very poor results in the diploma of accounting, fail, fail, fail, withdrawn? Why do you believe now that you will be able to successfully study accounting and business?
Mr. Singh:At the moment, I am enrolled in Certificate III for a diploma in automotive. Tribunal Member: You're enrolled in what?
Mr. Singh: Certificate III diploma and Certificate IV in automotive.
Tribunal Member: Well we sent you, with the hearing invitation, we said, "Please, provide us with evidence of all your past studies in Australia including copies of all attendance certificates, academic transcripts, certificates of completion. Please fill out a copy of your current confirmation of enrolment or other documents to show you're currently enrolled in courses. We'll assess whether you're a genuine applicant. Please provide us with a written statement addressing the issues in direction 69."
I don't believe we got the statement. Well, you sent a letter explaining genuine temporary entry, but it doesn't address the issues. Where is evidence of your current enrolment?
[pause 00:17:04]
The evidence that I've got, I think, as enrolment, has nothing to do with a Certificate III in automotive. It's advanced diploma of business, are you studying that at the moment?
Mr. Singh: Yes, I'm doing advanced diploma of business studies.
Tribunal Member: Why? Why would you be doing an advanced diploma of business if you're going to go on and do a bachelor of business.
Mr. Singh:It was before degree of business, I have to do an advanced diploma in business. Tribunal Member: Why?
Mr. Singh: That's what my CO said.
Tribunal Member: Where does it say that?
Mr. Singh: That's a copy of--
Tribunal Member: Sorry?
Mr. Singh:That's a copy of advanced diploma of business, and that's [interrupted].
Tribunal Member: No, my question is, why are you studying an advanced diploma of business, if what you then want to do is go on and do a bachelor of business?
Mr. Singh:After the bachelor of business, I want to move to my home country and open up my own business, that's why I choose that business studies.
Tribunal Member: Listen, why are you studying an advanced diploma of business if what you are going to do when you've finished that course, is go on and do a bachelor of business? It's not a prerequisite to do the advanced diploma to get into the bachelors course. Why did you choose Elite Education Institute.”
…
T. 8.25 – 12.23
“Mr. Singh:Five [address omitted] Road.
Tribunal Member: Is that where you lived when you came to Australia?
Mr. Singh: Yes.
Tribunal Member: That’s your family's home?
Mr. Singh: Yes.
Tribunal Member: What is house number two [address omitted]?
Mr. Singh: That's our previous address.
Tribunal Member: When?
Mr. Singh: 2013.
Tribunal Member: When did you move to the Enclave, the [address omitted] place?
Mr. Singh: In the end of 2013.
Tribunal Member: At the end of 2013. When? September, October, November, December? This shouldn't be difficult for you to remember when you came to Australia. On the 15th of November, did you move the week before you came here or a week after you left?
Mr. Singh:It should be in the month of December. Tribunal Member: You never saw the new house.
Mr. Singh: No, I saw it.
Tribunal Member: How?
Mr. Singh:At that time I was with my father. When we tried to from our previous address to new address.
Tribunal Member: Before he bought it though?
Mr. Singh: We already bought the house.
Tribunal Member: Right.
Mr. Singh:Because on the ground floor, we have a health gym on the ground floor.
Tribunal Member: The ground floor is a health gym. Yes.
Mr. Singh:On the first floor, we have three rooms, but that time, we haven't moved.
Tribunal Member: What do you mean three rooms?
Mr. Singh: Three rooms, living house.
Tribunal Member: Right.
Mr Singh: So after—(interrupted)
Tribunal Member: So what's there now? On the ground floor now, he runs a gymnasium there?
Mr. Singh: Yes.
Tribunal Member: That's your father's business?
Mr. Singh: Yes.
Tribunal Member: That's on the ground floor. The first floor is three rooms?
Mr. Singh: Yes.
Tribunal Member: You sure?
Mr. Singh: Yes.
Tribunal Member: How are you sure? You've never seen it or you have seen it?
Mr. Singh: I haven't seen that.
Tribunal Member: You haven't seen it?
Mr. Singh: No.
Tribunal Member: He wouldn't have a surprise for you, would he? You don't think, your did?
Mr. Singh: Pardon.
Tribunal Member: You don't think your dad will be having a surprise for you?
Mr. Singh: Yes. Definitely.
Tribunal Member: You do?
Mr. Singh: Yes.
Tribunal Member: I think he might be too because what he provided is his whatever it is from the architect’s firm that says, "[address omitted]." It's not the same address that you’ve given.
[silence]
Mr. Singh: That's the gym--
Tribunal Member: Sorry.
Mr. Singh: Yes.
Tribunal Member: That's what?
Mr. Singh: That's our house.
Tribunal Member: Your house?
Mr. Singh: Yes, on ground floor.
Tribunal Member: Your father owns it?
Mr. Singh: Yes.
Tribunal Member: It's different from--
Mr. Singh: [unintelligible 00:27:47]. That's our previous.
Tribunal Member: It's different from shop two, [address omitted], Jalandhar, is it?
Mr. Singh: This might be the address of the architect.
Tribunal Member: That's interesting. It might be too. Then you'd think they'll have the address of the property that they were looking at, but they don't, that I can see. However, what this shows is-- What's the health business called? Do you know?
Mr. Singh: Punjab.
Tribunal Member: Punjab Health Club?
Mr. Singh: Yes.
Tribunal Member: This valuation says that on the ground floor where you say he's running a health club-
Mr. Singh: Yes.
Tribunal Member: -it says ground floor running business, Punjab Motor Garage? First floor, running business, Punjab Health Club.
Mr. Singh:At the moment, we have on the ground floor. After I done all the studies, I'm going back to home country, then my father is going to switch the gym on the first floor –(interrupted )
Tribunal Member: No. Not going to. What this says is the architects have been there and have a look and they've seen on the ground floor there's a business, a garage and on the upstairs floor there's a health club. On the ground floor, the business, there is gymnasium equipment. Upstairs, there is garage equipment, gym machines. Downstairs, there's garage equipment. You didn't know that he's turned the downstairs into a garage?
Mr. Singh: No. He hasn’t. We're just planning to do the same thing.
Tribunal Member: The architects had done this quotation on a plan?
Mr. Singh: Just plan, just a plan.
Tribunal Member: So he doesn't have this money at all, this is just--
Mr. Singh: No, we have that money.
Tribunal Member: No, you don't. No, you can't provide me with a valuation. This is a valuation that somebody says, "Here's this construction. The value of the construction is this. The land value is this. On the ground floor it's got a Punjab Motor Garage, and there's six lakh, 10,000 rupees of garage equipment, and on the first floor there's a health club business with lakh of gym machines, equipment, et cetera." That's not something you do on a, "We'll plan to do that in the future," at all. If you call someone in to do a valuation, what they're doing is valuing what's there, and there's no evidence of residents here at all. What this says is that on the ground floor there's a garage and on upstairs there's a gymnasium. You'd think it'd say there's bedrooms, and kitchen equipment, and furniture. None of that. Very strange, very strange indeed. All right, what studies have you completed since you've been in Australia?
…
T. 13.2 – 14.36
“Tribunal Member: The situation is you've been here since November 2013, so that's, '14, '15, '16, '17, and '18, that's-
Mr. Singh: Almost five years.
Tribunal Member: Almost five years, and in that period of 5 five years you've completed studies that took two years and three months?
Mr. Singh: Yes.
Tribunal Member: I don't think that's the progress of a genuine student. You want to do a Bachelor of Business Management. You've got no idea where the college is. You've got no idea what subjects are in the course. You say you want to do economics, but it's not one of the subjects in the course according to the website of your chosen education provider. What's the plan if you complete this course? This is a course that-- I know you've studied Business before and done hopelessly at it in the only times you've had a real go. In the diploma you did, four units, three units, failed them all, you didn’t even start the other one. I've got no idea why you'd have any confidence to go on and do a Bachelor, which is a lot harder that what you've done there. I think you said it wasn't in your interest. What's the plan if you complete this course?
Mr. Singh:After my studies I want to go back to my home country and open up a car workshop.
Tribunal Member: You want to what?
Mr. Singh: Open, I want to open my garage.
Tribunal Member: A garage? What sort of a garage?
Mr. Singh: Like a motor garage.
Tribunal Member: Yes, now I wonder about what your plan is, because when we look at what you've said in the past, and you said, "My future plan is to have my own luxury car showroom," was the first one, and then it was, "I've already discussed with my father to start up my own automotive workshop garage." Then it says, "I'll be exploring opportunities to work for some reputed automobile industries in my city or within the state."
Mr. Singh: Yes.
Tribunal Member: You are going to set up a luxury car dealership, or you are going to set up a garage, or you are going to get a job for someone working in one of the reputed automobile industries? Which one of those?
[silence]
Mr. Singh: Just the garage, yes.
Tribunal Member: Then why would you say towards the finish, "I'll also be exploring opportunities to work for some reputed automobile industries in my city or within the state."? That indicates to me that you haven't got any business plans. It's an extraordinary thing for someone to say, who provides me with a valuation from an architect, that says the family owns a property, that's running a garage on the ground floor and your dad is a physical health person. Who is running the garage at the moment?
Mr. Singh: No one, that's just a plan that I'm going to do in the future.
Tribunal Member: You are?
Mr. Singh: I'm going to do in the future. That's just a plan after my studies.
Tribunal Member: Mr. Singh, what you have provided here from Agrawal Rajesh and Associates Chartered Accountants as what they've headed up on wealth statement. They've listed movable assets, liquid assets, cash-on-hand, jewellery, other assets, immovable assets. The immovable assets that are on this list are the property that we've spoken about, that they listed at 87 lakh, 13,000 rupees. It details what they value in that property. Gym equipment, garage equipment, but you say there is no garage equipment there. They've made a valuation on something that doesn't exist.
Mr. Singh: Yes.
Tribunal Member: Then this document is fraudulent. An accountant cannot say, "Let me value for you what you've got," because that's what this is, it's a wrong statement, what you own? Now the staggering thing about it is, it doesn't include any furniture or whatever at home in your house. But what they say is, what you've got is, and they've listed. Gym equipment valued it, 8 lakh 45,000, gym machines amount. 30 Then, Punjab Motor Garage, six lakh, 10,000 rupees garage amount. But you say that equipment is not there, we've told them that's what we're going to get. If that's what you told them, you know what they’d list that under? Cash-in-hand because that would be money we've got, but we are going to buy equipment with it. This says the equipment exists, you say it doesn't exist.
Mr. Singh: Yes.
Tribunal Member: Either you're wrong or this document is a fraud.
…
T. 16.9 – 16.24.
“Tribunal Member: All right. I don't have any further questions. Is there anything else you want me to consider or any questions you have of me or anything else you want to say before I make a decision in this matter?
Mr. Singh:My last concern is after my studies, I could go back and start my own business. That's my plan. That's just a plan. There's no machinery. There's nothing that-- garage things that exist.
Tribunal Member: So the document is fraudulent?
Mr. Singh:No. I'm just talking to my father, just making a plan that I'm going to do in the future. I don't know what happened with the documents.
Tribunal Member: Neither do I. What it says is that the movable assets of the property situated and it gives the address of the property. The valuation is made by Mahey architect-designer, so who knows? What it states is that there's stuff there and you say no, there's not. No, that's just what we plan to put there. Okay. The document is not genuine or you're incorrect, one, or the other. Is there anything else?”
(underlining and highlighting added) (addresses omitted)
The analysis by a court as to whether or not an administrative decision is tainted by apprehended bias or not is necessarily impressionistic. As was said by Kirby J in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 162:
“[162]… All other cases of disqualification fall to be decided by reference to the principle of apprehended bias based on the reasonable impression of the hypothetical bystander. This has long been the way the law in Australia has approached such questions. The approach should not be changed.”
The underlined and highlighted parts of the excerpts of the transcript recorded above are those parts which the Court has found to be so unnecessarily confronting, argumentative, cynical and erroneous as to warrant the finding by the Court of apprehended bias on the part of the Tribunal member.
The Court had the advantage of listening to an audio file recording of the transcript of the Tribunal hearing whilst contemporaneously reading the transcript, and was assisted by its having done so for the purpose of considering whether or not to make the finding which it has. The Court does not necessarily accept that the Tribunal member’s manner, tone and level of speech was intended to be confronting, but the Court finds that, in combination with the actual words used by the Tribunal member, all three (3) contributed to the Court perceiving that the test for apprehended bias had been satisfied.
In the light of the Court’s finding that the decision of the Tribunal member was affected by apprehended bias, and that a lay observer would have gained the impression that the Tribunal member had not approached the applicant’s claims with an open mind, the Court accepts the applicant’s submission that the Tribunal member conducted the hearing in a manner which did not avail the applicant of the opportunity to have a fair and meaningful hearing as was required pursuant to the provisions of s. 360 of the Act.
The failure to conduct a fair hearing, in the circumstances, constituted jurisdictional error based upon each of Grounds 1 and 2 of the Amended Application for Review.
The decision of the Tribunal made on 23 November 2018 is quashed.
The applicant’s application for review of the first respondent’s decision is remitted to the Tribunal for re-hearing, according to law, and that for the purpose of the Tribunal again determining such application, it be differently constituted.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge Egan. Associate:
Dated: 10 September 2021
McHugh, Gummow and Hayne JJ.
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