Federal Court of Australia

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders of the Federal Circuit Court made 21 July 2021 be set aside and instead the following orders be made:

(a)    the decision of the Second Respondent dated 17 October 2019 be set aside; and

(b)    the Appellant’s application for a visa be remitted to the Second Respondent, differently constituted, to be determined according to law.

3.    Unless, within seven days from the date of this order a party files and serves short written submissions (not more than three pages) opposing the order, the First Respondent is ordered to pay the Appellant's party-party costs of and incidental to this proceeding, and of the hearing before the Federal Circuit Court, to be agreed and if not agreed to be assessed by a Registrar on a lump sum basis.

4.    In the event that within seven days a party files and serves submissions in opposition to the costs order proposed in Order 3, the other party shall within seven days thereafter file and serve short written submissions (not more than three pages) in response. The question of costs will then be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Weijiang Chen, appeals from orders of a judge of the Federal Circuit Court of Australia (as it was then known) made on 21 July 2021. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 17 October 2019, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), made on 17 April 2019 to refuse to grant the appellant a subclass 485 temporary graduate (post-study work) visa (the visa) pursuant to the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations).

2    The central basis of the appeal is that the primary judge erred by not concluding that the Tribunal hearing was affected by apprehended bias. For the reasons we explain, we are satisfied that appeal ground is made out. It is therefore appropriate to allow the appeal and to remit the appellant’s application for the visa to the Tribunal, differently constituted, to be determined according to law.

The facts and procedural history

3    In July 2014 the appellant, a citizen of China, arrived in Australia as the holder of a student visa.

The conviction(s)

4    In 2015, following an incident with his ex-girlfriend, the appellant was charged with common assault and stalking. A National Police Certificate dated 20 December 2018, produced by the criminal records section of the Australian Federal Police (AFP), records the following “court results” in relation to the appellant. It states that on 11 March 2015 at Downing Centre Local Court, the appellant was:

(a)    fined $880 for the offence “Common Assault (Domestic Violence)”; and

(b)    convicted and sentenced to a bond to be of good behaviour for 12 months for the offence “Stalk/Intimidate Intend Fear Physical Harm (Domestic)”.

5    It is uncontentious that the appellant was convicted of stalking, but there is a dispute between the parties as to whether or not the appellant was convicted of common assault. The only evidence as to the “court results” is the National Police Certificate, and it records that the appellant was fined $880 on the charge of common assault, but it does not state that he was convicted in respect of the common assault charge. We cannot exclude the possibility that no conviction was entered against him in relation to that charge. However, nothing in the appeal turns on whether the appellant was convicted on only one or on both charges.

The 2016, 2017 and 2018 student visa applications

6    The appellant applied for and was granted three further student visas, in October 2016, April 2017 and April 2018. During that time he completed three Masters courses: a Master of Professional Accounting at the University of New South Wales, a Master of Professional Accounting and Business at the Top Education Institute, and a Master of Business Administration at the Holmes Institute. All three courses were conducted in English.

7    The appellant’s unchallenged evidence is that his visa applications in 2016 and 2017 were prepared by a migration agent and then signed by him. He said that he told the migration agent about the fine and the bond imposed in 2015 and he was advised by the migration agent that there was no requirement to disclose that in the visa applications. Those applications did not disclose that he had any conviction(s).

8    In respect of the appellant’s 2018 student visa application, which he made on 26 February 2018, the appellant’s evidence is that to save money he completed the visa application himself and he copied the responses across from the applications previously made on his behalf by his former migration agent. The 2018 application is not in the materials before the Court but the delegate’s decision states that the appellant made the following declarations on the application form:

Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

No

…

The applicants declare that they: Have read and understood the information provided to them in this application.

Yes

Have provided complete and correct information in every detail on this form, and on any attachments to it.

Yes

Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any members of their family unit, may become unable to be granted a visa for a specified period of time.

Yes

9    The appellant was granted a student visa on 9 April 2018, which applied until 31 January 2019.

The 2019 visa application

10    Having completed his academic studies the appellant wished to obtain employment in Australia. He engaged a migration agent, MEK Consultancy (MEK) of Suite 402, Level 4, 167 Queen Street, Melbourne to assist him with obtaining the appropriate visa. The National Police Certificate dated 20 December 2018 is addressed to MEK and it is appropriate to infer that MEK applied to the AFP for it.

11    On 15 January 2019 the appellant applied for a subclass 485 visa. In response to a question on the visa application as to whether he had ever been convicted of an offence in any country, the appellant answered “Yes” and added the following detail: “bond to 12 months good behaviour”.

12    On 18 March 2019 the Department of Home Affairs wrote to the appellant outlining its view that he had provided false or misleading information in his 2018 visa application. The Department invited him to comment on the information which was suspected to be false or misleading, and to specify if there were any relevant compassionate or compelling circumstances under the Regulations to justify the grant of the visa. The letter noted that the grant of the visa required that the appellant satisfy Public Interest Criterion (PIC) 4020 contained in cl 4020 of Schedule 4 to the Regulations. Clause 4020(1) provides as follows:

There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

13    If there is such evidence before the Minister, cl 4020(4) provides:

The Minister may waive the requirements of any or all of paragraphs (1)(a) and (b)… if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

14    The suspected false or misleading information in the 2018 visa application was that the appellant had declared that he had not been convicted of an offence in any country, and yet the National Police Certificate attached to the 2019 visa application “show[ed] two convictions dated 11 March 2015”. On that basis the Department suspected that the appellant had failed to declare his convictions in the 2018 visa application, and thus did not satisfy PIC 4020(1)(b).

15    On 10 April 2019 the appellant responded to the Department by letter and said:

After reading your letter, I realised that I had made an honest mistake when I applied for a student visa in 2018, but I did not intentionally conceal any information.

When I supplied the required documents, I did not realise that the offence I had committed was considered a conviction. I thought that conviction meant going to prison, and I was just fined and given a 12 month good behaviour bond.

I have read [PIC] 4020 and understand the serious consequences of concealing or providing false information, but I was absolutely not trying to provide any false information. My student applications in 2016 and 2017 were made by my previous agent and at that time, I talked with them about my court case in 2015 and they said it would not affect the application. Therefore, when I made the student application in 2018, I followed the previous applications and did not understand the real meaning of the wording when I ticked the box: “no conviction”. I had no intention of misleading the Department - I just misunderstood.

The legal case in question occurred in 2015 and was a result of my own immaturity regarding romantic relationships. I had never been in a relationship before. Should it be required, I would be happy to explain the circumstances surrounding this regrettable incident and how I have learned from it. I am totally remorseful and am ashamed of my actions and it does not in any way reflect the person that I am today.

I have attached some character references for your information to testify to my true character. I hope you can accept my explanation and feel able to process my application successfully.

The delegate’s decision

16    On 17 April 2019 the delegate decided to refuse the visa on the basis that the appellant did not satisfy PIC 4020 and therefore did not meet cl 485.216(3) of the Regulations. Clause 485.216 relevantly provides that the visa applicant must satisfy PIC 4020.

17    The delegate concluded that there was evidence before the Minister that the appellant had provided or caused to be provided false or misleading information in his 2018 student visa application, which visa the appellant was granted and held in the 12 months before he made the 2019 visa application, by stating that he had not been convicted of an offence in any country.

18    It is uncontroversial that the authorities provide that any false or misleading document or information must be “purposefully untrue” before PIC 4020(1) is not satisfied: see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169 at [33], [49] (Buchanan J with whom Allsop CJ and Rangiah J agreed); Patel v Minister for Immigration and Border Protection [2015] FCAFC 22; 145 ALD 566 at [7] (Buchanan J), [32] (Flick J with whom Edmonds J agreed); Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [44] (Flick and Rangiah JJ).

19    The delegate did not accept the appellant’s explanation of innocent mistake in circumstances where the appellant had completed masters level qualifications taught in English in Australia, and he had successfully met the English language requirements necessary to study in Australia and to be granted a subclass 485 visa. The delegate also said that it was the appellant’s responsibility to ensure that the information supplied to the Department was correct, regardless of any advice or instruction by a migration agent or other third-party. The delegate refused to grant the visa.

The Tribunal

20    On 2 May 2019 the appellant applied to the Tribunal for review of the delegate’s decision.

21    The Tribunal heard the application on 17 October 2019 and the appellant gave evidence and made submissions, assisted by a migration agent. The appellant sought to give his evidence through a Mandarin interpreter, but the Tribunal limited the use of the interpreter. The hearing took only about 35 minutes and at its conclusion the member affirmed the delegate’s decision and gave ex tempore reasons. On 31 October 2019 the Tribunal delivered written reasons.

22    In the written reasons the Tribunal said (correctly) that its task was to take a fresh look at the application and to make a decision as to whether the appellant was entitled to the visa. It said (at [11]) that in the circumstances of the case it was first required to consider whether the appellant had provided information that was false or misleading in a material particular in relation to a visa; and second, whether there are any conditions that meant that the need to satisfy PIC 4020 might be waived.

23    In respect of waiver, the Tribunal said that the appellant’s claim that his English teacher had “become one of [his] best friends and would be most upset if the visa was not granted” was not sufficient to justify waiving the requirements under PIC 4020 (at [12]-[13]).

24    The Tribunal found that the appellant provided false or misleading information in a material particular in his 2018 visa application. The false or misleading information was his declaration that he had not been convicted of any offence in any country when, in fact, he had been convicted in March 2015 of common assault and stalking (at [14]-[15]).

25    The Tribunal considered the appellant’s explanation for why he provided the false or misleading information; specifically, that he did not realise that he was “convicted” of any offence in March 2015, and he had no intention of misleading the Department. The Tribunal also said that the appellant made some “unusual claims” including that the appellant did not believe that in China he would receive the same penalty for his offending conduct, and the matter would instead have been sent to mediation, and that “[o]ne of the reasons for the [different] outcomes is cultural differences between Australia and China” (at [16]). The Tribunal expressed concern that the appellant sought to downplay the importance of his offending conduct, and said that it believed that his embarrassment about that conduct is one of the reasons why he did not declare any convictions in the 2018 visa application (at [17]).

26    The Tribunal concluded as follows (at [18]-[21]):

[18]    Having considered the evidence available, the tribunal shares the view of the delegate, that firstly, the question that is in the [2018 student visa] application was clear and concise. Secondly, someone who has recently completed two Masters degrees in Australia, both courses delivered in English and has provided evidence of successfully meeting the English language requirements for the grant of a subclass 485 visa, even though your English may be improved since the date of the application, which was [made] back in February last year, I believe that somebody in your position would clearly understand the meaning of the question.

[19]    And I believe that there are reasons why you would not divulge that information. I put it to you that it may well have lead somebody considering your application to give it greater review had you declared “Yes”. You say “No, I think they would have granted it anyway”. Well, that is a point a conjecture but the tribunal finds that the answer that you provided was provided intentionally and that it was false or misleading. I therefore believe that there was purposeful falsity in your answer.

[20]    The Tribunal is therefore satisfied that in support of your application you provided evidence that is false or misleading in a material particular in breach of Public Interest Criteria 4020.

[21]    In considering whether 4020 should be waived there is not evidence before the tribunal that would satisfy the circumstances that would lead to a waiver and so in the circumstances, as you do not meet clause 485.216 [of the Regulations] it is the decision of the Tribunal to affirm the decision under review, which means the primary decision to refuse your visa stands.

The application to the Federal Circuit Court

27    On 20 November 2019 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 25 March 2021 the appellant filed a Further Amended Application for Review which contained the following two grounds;

1.    A reasonable bystander might apprehend - from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it - that the Tribunal might not have brought an open mind to its task.

2.    The decision was irrational, unreasonable or [un]intelligible in that no reasonable decision-maker could have proceeded on the premise that the applicant had been convicted twice or that he had been convicted of common assault.

28    The appellant submitted that there were various indications from the manner in which the Tribunal member conducted the hearing that might result in a fair-minded lay observer reasonably apprehending that the member might not have brought an impartial mind to the review application. He contended that the indications were in the form of the member’s issue with the use of an interpreter; the regular interruptions of the appellant when he was giving evidence; the suggestion that the appellant was “playing a game” with the Tribunal in relation to his English language proficiency; the criticism of the appellant about his asserted late appointment of a migration agent; the use of an intimidating, loud and/or rude, and incredulous or belittling tone; the member’s disinterest in the appellant’s evidence and any evidence favourable to the appellant; the description of the appellant’s claims as “unusual”; and the exaggeration of the appellant’s 2015 offending conduct. The parties relied upon a table setting out particulars of the appellant’s allegations of conduct said to give rise to apprehended bias and the Minister’s responses to those allegations.

29    In his reasons for decision [J] the primary judge identified the test in relation to apprehended bias (correctly in our view) by reference to Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4] (Allsop CJ) and [91] (Robertson J), and VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; 131 FCR 102 at [82] (Kenny J).

30    The primary judge listened to the audio recording and read the transcript (T) of the Tribunal hearing, and found that:

(a)    the identified “interruptions” did not evince unfairness in the conduct of the hearing: at J5, [12](c);

(b)    the member’s limitation of the use of the appellant’s interpreter was not unfair or inappropriate: at J6, [12](d)-(f) and J8, [12](d);

(c)    the member did not show disinterest in the appellant’s evidence so as to evince unfairness in the conduct of the hearing: at J8, [12](c);

(d)    there was no unfairness on the part of the member in the exchange relating to the asserted late engagement by the appellant of his migration agent: at J10, [12](e);

(e)    the member’s reference to wanting the appellant to be truthful was not said with an angry tone. Nor was it scornful or unduly negative, but rather an attempt by the Tribunal member to get the appellant to focus upon the need for him to be relevantly truthful throughout the Tribunal hearing. While the reference may have been unnecessary it did not show bias: at J10-11, [12](a)-(b);

(f)    the member’s reference to a charge of armed robbery, as a point of comparison to the charge of common assault, did not show unfairness on the part of the Tribunal: at J12-13, [12](c)-(e);

(g)    the member’s reference to the appellant “playing games” did not show unfairness in the way the member dealt with the evidence or otherwise sought to elicit responses from the appellant about issues in the case: at J14, [12](d); and

(h)    no weight should be given to the appellant’s evidence that at the point of the hearing when the member first raised the comparison between a conviction for common assault and armed robbery, the member “made a shooting gesture by pointing two fingers at [the appellant]”: at J14-15, [13].

31    In the primary judge’s view, the appellant’s claim of apprehended bias was made with an eye too keenly attuned to error and without sufficient appreciation as to the multiplicity of ways in which different decision-makers go about the task of eliciting relevant information from parties and witnesses during the course of a hearing: at J[15]. His Honour held that “a fair-minded lay observer would not reasonably have apprehended that the Tribunal had not brought an impartial mind to the resolution of the question for determination by him”: at J[16].

The Appeal

32    The notice of appeal dated 8 August 2021 raised three grounds of appeal but only the following two are pressed by the appellant:

1.    The Court below erred by not concluding that the Tribunal’s decision was affected by apprehended bias.

2.    The Court below erred by giving no weight to the appellant’s unchallenged affidavit evidence to the effect that the Tribunal member had made a shooting gesture at him during the Tribunal’s hearing.

Ground one - Apprehended bias

The applicable principles

33    There is no dispute between the parties as to the applicable principles in relation to this ground. The appellant submits that the primary judge erred in applying the test for a reasonable apprehension of bias. He contends that when the conduct of and the language used by the Tribunal member is considered as a whole and in context the Court ought to have concluded that the Tribunal’s decision was affected by apprehended bias.

34    Apprehended bias, if found, is an aspect of a denial of procedural fairness. A denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [17] (Gaudron and Gummow JJ) and [169]-[170] (Hayne J).

35    The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (Allsop CJ, Kenny and Griffiths JJ) citing R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288; Ebner; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283.

36    In ALA15 at [36] the Full Court explained that:

…at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)    there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

37    The rule in relation to apprehended bias applies both in the context of curial and non-curial decision-making. When applied outside the judicial system, the rule “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings”; and “regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: Refugee Review Tribunal, Re: Ex parte H [2001] HCA 28; 179 ALR 425 at [5] (Gleeson CJ, Gaudron and Gummow JJ).

38    One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:

…must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. 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.

: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).

39    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:

(a)    the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

(b)    specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];

(c)    saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:

(i)    they have an opinion on the relevant aspect of a matter in issue;

(ii)    they will apply that opinion to the matter in the case; and

(iii)    they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and

(d)    having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

40    The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as Kirby J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [90], the test:

…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.

(Citations omitted.)

An allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved. More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion: Jia Legeng at [69] and [71]-[72] (Gleeson CJ and Gummow J).

The standard of appellate review

41    While the primary judge’s decision that the Tribunal member’s conduct did not give rise to a reasonable apprehension of bias was necessarily evaluative, his decision to dismiss the application was dictated by the application to the facts of the fixed rule prohibiting apprehended bias. It did not involve the exercise of discretion, in that it was not a matter in which the primary judge was allowed “some latitude as to the choice of decision to be made”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] (Gleeson CJ Gaudron and Hayne JJ); see also Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 518 (Mason and Deane J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] (Kiefel CJ), [43]-[49] (Gageler J), [85]-[87] (Nettle and Gordon JJ) and [144]-[147] (Edelman J).

42    Thus the primary judge’s decision does not attract the more deferential standard of appellate review applicable to an exercise of judicial discretion, as explained in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 (Dixon (as his Honour then was), Evatt and McTiernan JJ). The question on appeal is whether the primary judge was right or wrong in his conclusion that the appellant had not established a reasonable apprehension of bias, not whether that conclusion was open to him in a House v The King sense.

43    The standard of appellate review is that referred to in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551-522 (Gibbs CJ, Jacobs and Murphy JJ), in which the majority explained (at 552):

The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

The appeal is by way of rehearing, and it requires a “real review” of the proceeding below: Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [413] (Bromwich, O’Callaghan and Wheelahan JJ) citing Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ).

44    The primary judge’s conclusion on apprehended bias was based on his review of the audio recording and transcript of the Tribunal hearing, and we have the same evidence. This Court is in as good a position as the primary judge to determine on the evidence whether the appellant has established a reasonable apprehension of bias.

Determination

45    In order to decide the question of apprehended bias it was necessary for the Court to read the transcript and listen to the audio recording of the Tribunal hearing.

46    By reference to the audio recording and the transcript of the Tribunal hearing, the appellant identified numerous points in the hearing which he submits, considered in context and cumulatively, establish apprehended bias. The parties relied on the joint table filed in the proceeding below which set out particulars of the appellant’s allegations of conduct said to give rise to apprehended bias and the Minister’s responses to those allegations, as follows:

47    The joint table identifies the Tribunal member’s relevant conduct by reference to particular time points in the audio recording, but having listened to that recording we identify the relevant points below using page and line references from the transcript.

48    The appellant submits that the Tribunal member’s general tone and manner in dealing with him was often impatient, rude and bullying; he often raised his voice and was sometimes scornful. The appellant says that the member often interrupted him, generally when he was trying to give evidence helpful to his case: e.g. the interruptions at T8.05, T8.36, T10.26, T10.32 and T12.42. The Minister denies that the member’s general manner and tone was impatient, rude and bullying, and contends that the audio recording and transcript do not otherwise disclose that the member’s mind was not open to persuasion. The Minister says that the audio recording shows that the member and the appellant both spoke over one another, and argues that is a common occurrence during a hearing. The Minister also says that the member did not prevent or hinder the appellant from giving his evidence, and that the absence of any protest by the appellant is relevant to how the reasonable lay observer would reach a conclusion as to the manner in which the hearing was conducted.

49    While the appellant’s submissions sometimes overstate the position, having listened to the audio recording we are satisfied that at various points the Tribunal member’s tone and manner in questioning of the appellant was loud, aggressive and interrupting. He often raised his voice and was impatient and sometimes rude. He was, on occasion, scornful or incredulous as to the appellant’s evidence. He also showed disinterest in evidence which might tend to show that the appellant’s incorrect answer in the 2018 visa application was not purposefully false. The Tribunal member’s conduct also suggested that he was affronted by the appellant’s offending conduct and perceived lack of remorse.

50    The Tribunal’s inquisitorial role may involve robust and forthright testing of a visa applicant’s claims, and such testing will not of itself sustain a finding of apprehended bias: SZRUI at [24] (Flick J, with whom Allsop CJ agreed); and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias. Generally such behaviour simply forms part of the factual matrix in relation to which any question of apprehended bias is to be assessed, but in some cases such behaviour may show bias or give rise to a reasonable apprehension of bias: SZRUI at [91] (Robertson J with whom Allsop CJ agreed) citing Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at 10-11 (Lockhart J).

51    We have considered each of the instances of conduct by the Tribunal member on which the appellant relies, but our decision does not turn on a particular instance or instances. Rather, considering the Tribunal member’s conduct during the hearing in totality, and looking at the evidence cumulatively, we are satisfied that a fair-minded and appropriately informed lay observer might reasonably apprehend that the member might not bring an impartial mind to the question as to whether the appellant’s incorrect answer in his 2018 visa application was purposefully false. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Watson at 259 (Barwick CJ, Gibbs and Mason JJ (as their Honours then were), and Stephen J) citing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ). What strikes us when listening to the audio recording is that the Tribunal member’s conduct in the hearing crossed the line articulated in Ebner and the other authorities to which we have referred. In our respectful view the primary judge erred in finding otherwise.

52    We now turn to address some of the specific instances of the Tribunal member’s conduct which the appellant relies upon, but reiterate that our conclusion does not turn on a particular instance or instances.

53    First, the appellant submits that the Tribunal member began the hearing on a hostile note, unfairly accusing him of “playing games” by persisting with his request to use an interpreter. The transcript (T2.01-2.27) and audio recording show the following exchange at the commencement of the hearing:

MEMBER: Thank you. Good morning, Mr Chen. Welcome to the tribunal. Mr Chen, how good is your English? No, no, how good is your English?

THE INTERPRETER: Not good enough.

MEMBER: You’ve been in Australia since 2014. You studied a Master’s of Professional Accounting, a Master’s of Business Administration. You’ve applied for a 485 visa which requires you to have conversational English and you say you can’t speak English.

THE INTERPRETER: It’s not that I can’t speak English. It’s just my English is not good enough to proceed in this sort of ---

MEMBER: I see. Then perhaps you’re not eligible for a 485 visa. If you can’t speak English – English is a requirement for a 485 visa.

MR CHEN: No, actually, I can speak English but my English is not reaching the legal level. That’s why I require a ---

MEMBER: What do you mean “the legal level”? What’s your IELTS score – overall band score?

MR CHEN: Seven.

MEMBER: Seven. I wonder if you’re playing games with me, Mr Chen. Someone with an overall band score of seven has a good command of English, however, you want us to use an interpreter for everything, do you?

…

54    The Minister submits that, considered in context there is no basis whatsoever for the assertion that the Tribunal member’s remark, “I wonder if you’re playing games with me, Mr Chen” (T2.25), is suggestive of the member having been set against the appellant, or having formed the view that the appellant was a liar. The Minister accepts that the member spoke loudly but denies that his tone was intimidating or rude. The Minister argues that the transcript shows that the member agreed that the appellant may and should use the interpreter when he did not understand anything being said (T2.38), and that during the hearing the member employed the services of the interpreter for that purpose (T7.34). He says that at no time did the member prevent the interpreter from interpreting, or prevent or insist upon the appellant not using the interpreter where it was necessary to do so.

55    We accept that at different points in the hearing the Tribunal member allowed the interpreter to interpret questions for the appellant, and that the member did not insist upon the appellant not using the interpreter where it was necessary. We accept too that, by and large, the appellant displayed sufficient proficiency in English such that he did not require the assistance of an interpreter, and that on the occasions he sought assistance from an interpreter he was permitted to do so. Having said that, the transcript shows eight instances where the appellant required the assistance of an interpreter, and several other occasions where his evidence was somewhat garbled because of his difficulties with English.

56    It is important to keep in mind that the appellant’s proficiency in English (at least in 2015 when he was convicted and in 2018 when he made the incorrect declaration) was central in the application. The appellant accepted that his declaration in the 2018 visa application that he had not been convicted of an offence was incorrect. The question for the Tribunal was whether that incorrect answer was “purposefully false” such that PIC 4020 was not satisfied. In his letter to the Department of 10 April 2019, which was before the Tribunal member, the appellant said:

After reading your letter, I realised that I had made an honest mistake when I applied for a student visa in 2018, but I did not intentionally conceal any information.

When I supplied the required documents, I did not realise that the offence I had committed was considered a conviction. I thought that conviction meant going to prison, and I was just fined and given a 12 month good behaviour bond.

Later in the letter he also said “I…did not understand the real meaning of the wording when I ticked the box: “no conviction”. I had no intention of misleading the Department – I just misunderstood”.

57    In the exchange set out at [53] above, which occurred at the outset of the hearing, the Tribunal used a loud and intimidating tone, which was redolent of disbelief. It may have suggested to the fair-minded lay observer that the member had read the papers and was set against the appellant from the start, as seen in the member refusing the appellant’s reasonable request to use an interpreter throughout the hearing (T2.01-2.39) and almost immediately wondering whether the appellant was “playing games with [him]”. To the fair-minded observer, that comment may have been reasonably understood as the member accusing the appellant of deliberately trying to mislead the member as to his proficiency with the English language by pretending to need the assistance of an interpreter. The member took that approach despite the fact that the appellant had explained that he was concerned his language skills were not sufficient for a legal setting, and had specifically claimed that at the time of the 2018 visa application he did not understand the “real meaning” of “conviction”.

58    Plainly, the appellant was not saying that he could not speak English; he was just saying that he did not consider his English to be good enough to rely on in a legal proceeding, keeping in mind that obtaining a favourable decision from the Tribunal was very important to him. Additionally, there was no issue before the Tribunal as to whether the appellant’s English language proficiency was sufficient for a subclass 485 visa, yet the member used the appellant’s explanation about his limitations with English as a basis for suggesting to him that, “perhaps [he is] not eligible for a 485 visa”. That was unfair and, in the context of the hearing overall, suggestive that the member was set against the appellant from the outset.

59    The vice in this part of the Tribunal member’s conduct was not so much that he might appear to have had an adverse opinion about the appellant’s claim before the hearing began, but that he had that opinion and then at various further points in the hearing his conduct was such that a fair-minded observer might well infer that there was nothing the appellant could say that might change the member’s mind. As we further explain, at various points in the hearing the member’s impatience, interruptions, tone, questioning, and comments about the implausibility of the appellant not understanding the meaning of “conviction”, might lead a fair-minded observer to consider that the member might not be open to persuasion: see VFAB at [82].

60    Second, the appellant relies on the following exchange (T3.31-4.33), which took place almost immediately after the exchange regarding the use of an interpreter:

MEMBER: …I do have a question: why – when did you engage Mr Zhao to provide you with support here today?

MR CHEN: After the hearing notice

MEMBER: It looks like it was Tuesday, two days ago.

MR CHEN: Yes. On that day I sent the represented form to the ---

MEMBER: It makes it almost impossible for an agent, a lawyer, it doesn’t matter how good they are; if somebody says, “Can you represent me, I’ve got to go to the tribunal tomorrow or the next day”. Why would you wait so long?

MR CHEN: To be very frank I ---

MEMBER: I don’t want you to be anything other than what you swore you would be earlier; just be truthful.

MR CHEN: Yes. I hear. I regard it as being truth because I didn’t think my hearing is so fast because when I made the applicant in the AAT they tell me my case …here to ---

MEMBER: Who told you that?

MR CHEN: The reception told me that?

MEMBER: I beg your pardon?

MR CHEN: The reception staff told me the average waiting time for my case is around one year.

MEMBER: When?

MR CHEN: When have I lodged my application. And when I received the hearing notice on ---

MEMBER: The 2nd of October

MR CHEN: …yes, October. And I did have a very --- a very ---

THE INTERPRETER: And I was very worried

MR CHEN: Yes. And I ---

MEMBER: So you don’t do anything for two weeks.

MR CHEN: No, no. I – actually – actually, I contact the – I contacted him through – to – to be my representative just about what – after one week before I received a ---

MEMBER: I see. All right. Righto…

61    The audio recording and transcript shows that the member went off on a tangent at this point by asking an irrelevant question as to when the appellant appointed a migration agent. The member then interrupted the appellant before he could respond and, by reference to the date on which the appointment form was lodged with the Tribunal, the member (wrongly) criticised the appellant for appointing his agent late, using a loud voice and an intimidating tone (T3.40). When the appellant gave evidence as to when he engaged the migration agent, the member interrupted him again and said in a critical tone, “[s]o you don’t do anything for two weeks” (T4.27). As the appellant made clear when he was given a chance, he had appointed the migration agent about one week after he received notice of the Tribunal hearing on 2 October 2019, but he did not notify the Tribunal of that appointment until a few days before the hearing (T3.36 and T4.29).

62    In endeavouring to answer the Tribunal’s irrelevant question, which was based on an incorrect assumption, as to why he had waited so long to appoint an agent, the appellant commenced by saying: “To be very frank…” (T3.44). It can be accepted that the appellant was giving sworn evidence; he was required to be truthful in his answers, and his use of that phrase was superfluous. But the use of such a phrase as an introduction to an explanation is commonplace in everyday speech. Without permitting the appellant to finish his explanation the member interrupted him again, using a loud, forceful and angry tone, and said: “I don’t want you to be anything other than what you swore you would be earlier, just be truthful” (T3.46).

63    The member’s gratuitous and unjustified criticism of the appellant’s preparation of his case was irrelevant and may have been suggestive of bias to the fair-minded observer. His interruption to sternly warn the appellant to be truthful suggests that the member thought that the appellant may not give honest evidence, notwithstanding that the appellant had not done or said anything prior to that exchange which could be said to have fairly raised any doubt as to his honesty. The member was required to have an impartial mind, open to persuasion, as to whether the appellant’s answer in the 2018 visa application was purposefully false. When considered together with the other matters to which we refer, this exchange might lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the member might not bring an impartial mind to that central question.

64    Third, the appellant contends that the Tribunal member displayed little or no interest in exploring the central issue as to whether his incorrect answer in the 2018 visa application was purposely false; which also supports a finding that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have had an open mind. On the appellant’s argument, the Tribunal member’s approach indicates that he had come to the hearing with his mind made up and he therefore thought it unnecessary to make proper enquiries.

65    The Minister submits that a claim of apprehended bias cannot be made out by reference to a critique of the Tribunal’s inquisitiveness. He argues that there is no complaint that the Tribunal failed to afford the appellant the type of hearing required under s 360 of the Act, and that the appellant was well aware of the issues on review before the Tribunal. The Minister contends that it was unnecessary (and not indicative of bias) for the Tribunal not to explain the meaning of “conviction” to the appellant, or to further explore the issue of purposeful falsity with him.

66    We take a different view. It is difficult to understand why the Tribunal member did not at any point ask the appellant why he made an incorrect declaration as to his conviction(s) in his 2018 visa application, whereas in his 2019 visa application he freely answered the same question correctly. The fact that the appellant freely provided the correct information in his 2019 visa application could be said to indicate that the incorrect declaration in his 2018 visa application did not involve purposeful falsity. However, the member did not explore that issue at all.

67    The closest the member got to this issue was by asking the appellant why he considered the delegate’s decision to be wrong. The transcript, to which we have made some slight corrections based on the audio recording, shows the following exchange (T5.32-6.31):

MEMBER: Then what I want you to do is tell me why you think that decision was wrong.

MR CHEN: Yes. Because how to admit I made a mistake in the application. I do – I do…misleading information but is – an innocent mistake. Actually…I got the AFP from the police station. I know how the conviction. Because before I – I only think it means going to the – to the jail. So that’s why I provided the fake information, actually, not only in 2018 because I have this legal case in 2015 and after 2015 I made three student applications in 2015, 2017 and 2018 – 2018. So all the three student applications provide the fake information in the…you mentioned just now. But that’s why – that’s why from 2015 and I made mistake in those three applications and until in 2019, this year I made the working visa and I know I have the AFP and I make this mistake. But – but how to say it’s really innocent mistake. I’m not intentionally to provide any fake information.

MEMBER: How can it be an innocent mistake; it’s a simple question. And presumably at the time you got charged, you say you were worried or nervous about coming here today. You must have been nervous and worried about going to court when they charged you with common assault and with stalking. And you’ve gone to court and had a hearing and the court case has said you’re found guilty, we convict you, and we find you guilty and you’re fined. And you’re put on a bond. And you said “I didn’t know I was convicted”.

MR CHEN: No, no, no. Because – because, you know. I’m from China so the background between the truth actually are really different and also even before coming to Australia my visa was not made…at that time I was – at that time I paid…agent and my English is not as good to understand everything in the court because now my English is better than five years ago and, you know, actually the court is 2015 so is only one matter before…after I came to Australia. And at that time I didn’t understand everything. So just when the legal case finished my lawyer told me I had a punishment, like how to pay the fine 880. And he told me you need to behaviour good. And I do behaviour good after that.

So actually I didn’t know – I didn’t really know it’s a – it’s a conviction because at that time I – at that time I’m – you know, to be honest, the legal case impact my life a lot because I – after…after that case I got…and I failed in many subjects. That’s why I changed my course. Before I started Master of Professional Accounting Extension which is two years course in UNSW and after that I failed many course because I can’t be concentrating and I always think I did the wrong thing because in China I’m always behaving very well. I didn’t have any legal case like that so I failed many course and because I want to graduate I don’t want to fail my subjects so that’s why – that’s why I changed my program and I take another study…registration. I got – made so many applications.

Actually, I didn’t want to give you excuse or something. I admit I made mistake but it really, really innocent mistake.

(Emphasis added.)

68    As is apparent, the appellant said that before he made his 2019 visa application, he “got the AFP from the police station” (which we take to be a reference to the National Police Certificate provided by the AFP), and he then knew that he had a conviction because that document described the “court result” in respect of the stalking offence as, “Convicted. Bond to be of good behaviour for 12 months”. The appellant said that, up to that point, he had thought conviction meant “going to the jail”. In 2019, he provided the correct answer to the question about having a conviction, using similar language to that in the National Police Certificate: “bond to 12 months good behaviour”.

69    The appellant’s evidence that he had declared the correct information as soon as he had it, was inconsistent with the Tribunal member’s apparent hypothesis that the appellant was “playing games” in relation to his proficiency in English. However, instead of engaging with the appellant’s explanation, the member merely asked, rhetorically, in a loud and forceful tone: “How can it be an innocent mistake; it’s a simple question…” (T6.01). Nor did the member engage with the appellant’s evidence that:

(a)    he thought a conviction meant “going to the jail” (T5.38);

(b)    he “didn’t understand” everything that was said during his criminal court case in 2015 (T6.15); and

(c)    his lawyer at the time of his criminal court case told him that his “punishment” was to pay a fine and be of good behaviour, which he did (T6.15-6.16).

Seen in the context of the other matters to which we refer the member’s failure to explore those issues with the appellant might suggest to the fair-minded observer that the member had a closed mind on the question of whether the appellant’s incorrect declaration was purposefully false.

70    Further, rather than engaging with the appellant’s explanation, the Tribunal member instead asked the appellant to spell out the various academic courses he had completed. That the appellant had completed those courses was uncontroversial and the relevant certificates were in evidence. The member’s focus on those matters over those raised by the appellant in the hearing might suggest to the fair-minded observer that the Tribunal member was fixed on the idea that the question in the 2018 visa application was a simple one, and that the appellant’s proficiency in English was such that he could not have misunderstood it. That conclusion may have been open to the Tribunal on the evidence, but the member displayed disinterest in evidence which pointed in favour of the appellant having made an innocent mistake. That includes: (a) that the appellant volunteered his 2015 conviction in his 2019 visa application; (b) there was no evidence before the Tribunal that the appellant’s IELTS English test or his academic studies exposed the appellant to the meaning of the legal term “conviction”; and (c) as the audio recording shows, the appellant struggled to express himself clearly using formal language. In the hearing he required assistance by the interpreter on eight occasions, and that was in 2019, four years after the 2015 criminal proceeding in relation to which he claims he did not understand he had been “convicted”.

71    The member’s focus on the academic courses which the appellant had completed also somewhat missed the point. The appellant’s criminal case occurred in 2015, and it was then that he claimed that he did not understand that he had been convicted. He subsequently studied in Australia and he claimed that he continued not to understand he had been convicted when he applied for the student visa in February 2018. He finished his studies in late 2018 and after receiving the National Police Certificate, he disclosed his conviction in his 2019 visa application. The member’s focus on the appellant’s English language proficiency at the time he completed his studies is suggestive of a closed mind to the possibility that the appellant might not have understood the meaning of “conviction” in 2015, which misunderstanding persisted until he made his 2019 visa application.

72    We also have other concerns about the Tribunal member’s conduct in this part of the hearing when, in response to the appellant’s explanation of why he considered the delegate’s decision was wrong, the member asked rhetorically, “[h]ow can it be an innocent mistake; it’s a simple question” (T6.01). At that point the member referred to the appellant’s previous comment that he was feeling worried about the Tribunal hearing, and said in a loud and forceful manner and tone that the appellant must have been “nervous and worried” about going to court in 2015 after being charged. The member said to the appellant: “you’ve gone to court and had a hearing and the court case has said you’re found guilty, we convict you, and we find you guilty and you’re fined. And you’re put on a bond”. It was in that context that the member queried how the appellant could say that he did not know he was convicted (T6.03-6.07).

73    The clear implication in the Tribunal member’s statement is that it was implausible that the appellant would not know that he had been convicted when he had gone to court, had a hearing before a magistrate, was found guilty, convicted, fined and put on a good behaviour bond. It can be accepted that it is likely that the appellant attended court in 2015 given some of the other references in the evidence (at T6.12 and 6.14); but there was no evidence about what occurred in that proceeding. The only evidence of the conviction(s) was the National Police Certificate and the Tribunal member could not have known, for example, whether the appellant’s lawyers entered a plea such that there was no court appearance required by the appellant, or whether the word “conviction” was used at all during any plea hearing that took place. The fact that, without evidence, the member would make conclusions as to what was said to the appellant or in the appellant’s presence in respect of the criminal proceeding may suggest prejudgment to the fair-minded observer.

74    Fourth, the appellant relies on an exchange where the Tribunal member asked him what he thought the Department “might have done” if he had declared the conviction in the 2018 visa application (T10.09). The transcript, to which we have made some slight corrections based on the audio recording, (T10.06-11.11) shows the following exchange:

MR CHEN: Yes, because I didn’t know that was ---

MEMBER: I see. If you did know and you think you had declared it, what do you think they might have done?

MR CHEN: Sorry, can you repeat?

MEMBER: If you did know – yes, I’ve got a conviction, I should tick yes – what do you think they might have done?

MR CHEN: You mean if I know and I do tick the ---

MEMBER: If you put on the application, “Yes, yes, yes, I’ve been charged with domestic violence and have been convicted, found guilty, and stalking”, yes; what do you think they might have done? They might have considered whether or not we’ll give this man a visa, whether he’s suitable for a visa.

MR CHEN: To be honest, I think if I did know and I declare they will still give me the visa because that case is not – it is not – it’s not that serious because ---

MEMBER: I beg your pardon? It’s not that serious?

MR CHEN: No, no. I-I-I mean because – I don’t know how to say, because there was some – because some – some legal case may – may impact the visa but some may not. But if I did know the conviction, I will declare. Because I ---

MEMBER: And you think common assault is not something you should be concerned about.

MR CHEN: No, no. Of course, I think the visa…will consider. Yes, of course. But like, you know, some – some case may – may affect and I get refused because of that. But some may not so if you really ask me I think that case will not impact. No, no, no. I mean – sorry for my English. It’s not my first language. I mean, if they really ask me…visa and I – I saw this case and I will reject or not; if you ask me that case I think I will give the visa.

MEMBER: No worries. What about if it was armed robbery?

MR CHEN: It was?

MEMBER: What about if it was armed robbery; someone goes into a shop with a gun?

MR CHEN: That one he will reject.

MEMBER: Sorry?

MR CHEN: That one will be rejected…

MEMBER: Why? Why? What’s the difference?

MR CHEN: Because that one is serious.

MEMBER: So is common assault.

MR CHEN: So I ---

MEMBER: All right.

MR CHEN: Actually I don’t know, because there’s really the legal – legal area and just from magistrate’s perspective, yes, so ---

MEMBER: I see. Alright. I don’t have any other questions…

75    The appellant submits that the Tribunal member showed apparent bias when, in response to the appellant saying his offending conduct was “not that serious” (T10.24), the member said in a loud voice, an incredulous tone, and in a hostile and intimidating manner, “I beg your pardon. It’s not that serious?” (T10.26). The Minister accepts that the member’s tone was somewhat incredulous, but denies that he was hostile or intimidating. The Minister contends that, in context, the member’s concern was understandable and notes that the appellant was provided an opportunity to comment, which is not indicative that the member’s mind was closed to persuasion.

76    The Minister contends that the Tribunal’s concern that the appellant did not believe that he had done anything wrong (i.e. he did not believe that disclosure of his conviction(s) in 2018 would have changed the Department’s decision, and that his offending “was not that serious”) was relevant to the question of whether the appellant intentionally did not disclose his criminal history, or whether the non-disclosure was explainable as a mere error. That can be accepted; but that was not the thrust of the member’s questioning. In our view the member’s approach was suggestive of disinterest in the possibility that the non-disclosure of his conviction(s) could have been an innocent error, even in circumstances where the appellant’s view that his offences were not that serious pointed away from a conclusion that he deliberately did not disclose them to the Department.

77    Having heard the audio recording, while in our view the member’s tone was incredulous, we do not accept the appellant’s assertion that the member used an inappropriately loud voice or a hostile and intimidating manner at that point. Even so, in our view this exchange suggests that the member took a strongly adverse view of the appellant’s offending conduct, and was aggrieved by his perceived lack of remorse. That can be seen when one couples the above exchange with a subsequent exchange in which the member responded to the appellant’s evidence that the punishment for his 2015 offending conduct would be different in China and would be dealt with using a “mediation kind of thing” (T13.03). The member said in a loud voice, “[y]ou don’t believe you’ve done anything wrong, really; do you?” (T13.05), to which the appellant responded (T13.07-13.10):

No, no. Actually, I’m – actually – no, no. I blamed myself many times. That’s why after this I got depression, because I shouldn’t make that mention. That’s what I’m saying. Actually I shouldn’t make that…because of the… but that… really impact me so much.

78    The appellant’s evidence in response to the member’s questioning in this part of the hearing was far from clear, and twice he expressly said that he was not able to clearly express himself in English (T10.28 and T10.38). Despite this, the member did not ask the appellant to clarify his responses by using the interpreter; instead, he proceeded on the basis of information provided in what was essentially broken English, and appeared to place little to no weight on the appellant’s repeated rejections of the member’s suggestion that he did not appreciate the gravity of his 2015 conduct (T10.35 and T13.07).

79    Fifth, in relation to the same passage of the transcript set out at [74], the appellant relies on his affidavit in which he deposes that when the Tribunal member referred to “armed robbery” (T10.46), the member made a shooting gesture by pointing two fingers at the appellant. We accept the appellant’s submission that his question to the member, “[i]t was?” (T10.44), indicated that he did not understand the phrase “armed robbery”, which prompted the member to repeat the phrase and to explain it as someone “going into a shop with a gun”. Contrary to the finding of the primary judge, we accept the appellant’s unchallenged evidence that the Tribunal member made a shooting gesture towards the appellant at that point. In our view it is appropriate to infer that the member did so as a non-verbal explanation of “armed robbery”.

80    In our view this exchange provided unprompted support for the appellant’s claim that he had a limited understanding of English; but the member made no attempt to explore the matter further, nor did the member count it in the appellant’s favour. This too provides some limited support for our conclusion that apprehended bias is established.

81    We do not accept the appellant’s submission that the shooting gesture made by the member was hostile and overbearing, and would reinforce the impression of a fair-minded observer that the member might not have an open mind. In our view there is nothing in the evidence to support the contention that the gesture was made aggressively or menacingly; that the appellant understood the gesture in that way; or that the fair-minded observer might reasonably have understood it that way. We do not consider that the shooting gesture is suggestive of apprehended bias in that way.

82    Having regard to the totality of the Tribunal member’s conduct in the hearing, and considering that conduct cumulatively as the observer would, we find that a fair-minded lay observer appropriately informed as to the hearing being conducted, might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the decision as to whether the appellant’s incorrect declaration involved purposeful falsity. We have referred to the various matters which, in combination, have drawn us to that conclusion and there is a clear logical connection between those matters and the feared deviation from the Tribunal deciding the case on its merits.

83    We consider the Tribunal did not afford the appellant procedural fairness and thereby fell into jurisdictional error, justifying an order that the Tribunal decision be set aside. We respectfully consider the primary judge erred in not so concluding. In the main, that conclusion arises from our view of the way the Tribunal member conducted the hearing, rather than any specific criticism of the primary judge’s reasoning.

84    For completeness, we also set out our view on another matter raised by the appellant, which does not form part of the matrix of matters which have led us to conclude that apprehended bias is established.

85    The appellant seeks to rely on what is not mentioned in the Tribunal’s reasons for decision. He submits that the Tribunal member’s ex tempore reasons made no mention of several matters which supported the appellant’s case, and neither do the written reasons that the member later provided. In particular, the appellant notes that the reasons:

(a)    do not mention that the appellant did disclose the convictions in his 2019 visa application, which was consistent with him being an honest person who had made an innocent mistake on the earlier occasion, and was inconsistent with him being a liar who sought to hide his offending conduct;

(b)    do not refer to a character reference from a friend of the appellant attesting to his honest character; and

(c)    do not take into account that the appellant’s claimed mistake in not understanding that he had been convicted arose in a timeline in which the appellant’s criminal case occurred in 2015, he subsequently studied in Australia, he continued not to understand he had been convicted when he applied for the student visa in February 2018, he finished his studies in late 2018 and then disclosed his conviction in his January 2019 visa application.

86    However, the rule against bias is a principle of procedural fairness and “principles of procedural fairness focus upon procedures rather than outcomes”: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [16] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The rule is intended to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [19] (Keifel CJ and Gageler J).

87    In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67], Gummow ACJ, Hayne, Crennan and Bell JJ explained as follows:

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.)

88    We note that in CNY17, Kiefel CJ and Gageler J (in dissent on the primary issue) cast some doubt on the impermissibility of considering the reasons of a decision-maker in determining whether an allegation of apprehended bias is established, stating (at [20]) that “the totality of the circumstances includes the decision and the reasons that the [Tribunal] has given for the decision”. Edelman J (who was part of the majority on the central issue, but wrote separately) said (at [135]) that in some cases, it might be relevant to consider the reasons for decision in assessing apprehended bias:

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”.

(Emphasis added.)

89    In contrast, Nettle and Gordon JJ endorsed paragraph [67] in Michael Wilson and said (at [69]) that:

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.

(Emphasis added.)

90    The remarks of Kiefel CJ and Gageler and Edelman JJ in CNY17 do not overturn the decision in Michael Wilson which is authority of long-standing. In our view it would be contrary to that decision to treat the Tribunal’s reasons in the present case as confirming, enhancing or diminishing the existence of apprehended bias, and we have not done so. But nothing turns on our view in this regard as, in the circumstances of the present case, apprehended bias is established without reference to the Tribunal’s reasons.

Ground two

91    Ground two alleges that the primary judge erred by giving no weight to the appellant’s unchallenged affidavit evidence as to the Tribunal member making a shooting gesture at him during the Tribunal hearing.

92    As we explained above, it is appropriate to accept the appellant’s unchallenged evidence that the Tribunal member made a shooting gesture to him when the member was explaining the meaning of “armed robbery”, and appropriate to infer that the member did so to provide a non-verbal explanation of the meaning of that phrase.

93    At J[13] the primary judge held that he was “unable to give any weight” to the appellant’s evidence regarding the shooting gesture, but in fact what his Honour did was reject that unchallenged evidence on several grounds. In our respectful view his Honour erred in doing so:

(a)    at J[13](i), the primary judge said that “[t]he applicant failed to discharge [his] evidentiary onus, in that no acceptable evidence of any weight was elicited as to which two fingers were alleged to have been pointed at the applicant, the way in which such fingers were alleged to have been pointed, nor as to how the pointing of two fingers could reasonably, and in any event, have thereby constituted a shooting gesture”.

The appellant’s evidence, on which he was not cross-examined, was that the Tribunal member “made a shooting gesture by pointing two fingers at me.” The meaning of that evidence is plain, and there was no requirement to him to further identify the gesture. If the Minister considered the appellant’s evidence was not probative or was somehow unsatisfactory he could have cross-examined him, and he chose not to do so;

(b)    at J[13](ii), the primary judge said that “there was no independent and objective evidence led by the applicant by way of corroboration of the applicant’s claim when such corroboration…could have come from the applicant’s representative, Mr Zhao”.

There was no need for the appellant to put on evidence to corroborate his account when his evidence was not contradicted by other evidence, and was not challenged in cross-examination;

(c)    at J[13](iii), the primary judge said that it was of “further significance” that “the audio recording does not record any protest having been made by either the applicant, or the applicant’s representative, at the time immediately after the alleged pointing gesture.”

A lack of protest to the alleged shooting gesture might be relevant if the gesture was made in a way which was hostile and intimidatory, but (as we have said) there is nothing in the evidence to suggest that the gesture was made aggressively or menacingly, nor that the appellant understood the gesture in that way. If, as we infer, the gesture was made merely as a non-verbal explanation of the meaning of “armed robbery” there would be no occasion for protest by the appellant or his migration agent.

94    Although the primary judge erred in his assessment of the evidence, ultimately he did not err by not giving weight to the fact that the Tribunal Member made a shooting gesture at the appellant.  That is so because the evidence does not show that the gesture was made in a way which was hostile and intimidating, nor made aggressively or menacingly. In those circumstances, save as identified in [80] above, the making of the gesture did not say anything at all as to whether the member was open to persuasion and accordingly deserved no weight.  Ground 2 should be dismissed on that basis.

Conclusion

95    We have made orders to uphold the appeal, to set aside the Tribunal’s decision, and to remit the appellant’s visa application to the Tribunal, differently constituted, to be determined according to law.

96    We are aware of no reason why the Minister should not pay the appellant’s party-party costs of and incidental to the appeal and the hearing below. We have made an order to that effect, the operation of which is subject to either party, within seven days, filing short submissions in opposition to such an order.

Associate:

Dated:    17 March 2022