Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1396

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal in a sum to be assessed in accordance with the court’s Costs Practice Note (gpn-costs) if not agreed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The first appellant, Mr Singh, is a citizen of India. The second and third appellants are his wife and child.

2    On 24 March 2015, Mr Singh made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for a subclass 572 student visa. The second and third appellants also sought visas as members of his immediate family. On 7 May 2015, a delegate of the first respondent (hereafter, the “Minister”) refused to grant that application (hereafter, the “Visa Application”). The appellants thereafter applied to the second respondent (hereafter, the “Tribunal”) for a review of that decision (hereafter, the “Minister’s Decision”).

3    That application (hereafter, the “Tribunal Application”) was the subject of a hearing that took place before the Tribunal on 31 August 2016 (hereafter, the “Tribunal Hearing”). On 19 January 2017, the Tribunal determined the Tribunal Application by affirming the Minister’s Decision (that affirmation is referred to, hereafter, as the “Tribunal’s Decision”).

4    By an amended application filed in the Federal Circuit Court of Australia (hereafter, the “FCCA”) on 19 August 2019, the appellants sought judicial review of the Tribunal’s Decision pursuant to s 476 of the Act. By orders dated 26 September 2019, the FCCA dismissed that application (hereafter, the “Judicial Review Application”): Singh & Ors v Minister for Immigration & Anor [2019] FCCA 2679 (Judge Kelly; hereafter, the “FCCA Judgment”).

5    By a notice of appeal dated 9 October 2019, the appellants appeal from the FCCA Judgment. They seek orders that the appeal be allowed, that the orders made by the FCCA in the Judicial Review Application be set aside, that the Tribunal’s Decision be quashed, that the Tribunal Application be remitted back to the Tribunal for further consideration, and that the Minister pay their costs, both of this appeal and of the Judicial Review Application.

6    For the reasons that follow, the appeal will be dismissed with costs.

Background

7    Mr Singh arrived in Australia on 28 June 2008 as the holder of a student (class TU, subclass 573) visa. Prior to his arrival in Australia, he worked as a tour organiser and porter in a family hotel business located in Shimla, northern India. The following passages of the FCCA Judgment contain a convenient, uncontroversial and accurate summary of relevant background facts, which I gratefully adopt:

5.     In 2009-2010, the applicant completed a Certificate III course in Hospitality (Commercial Cookery) and an Advanced Diploma of Hospitality Management. The applicant said that, having completed these courses, he intended to undertake higher education in business. However, he did not do so. Although he enrolled in a Bachelor of Business, (Hospitality Management), PRISMS records indicated that the applicant had not undertaken any study in that course.

6.     From March 2009 until at least 2015, the applicant worked in an import/export business as a production manager in a full-time position. While the applicant had also worked for short periods as a cook, he said that as a vegetarian he found working with meat and seafood revolting.

7.     On 11 August 2010, the applicant applied for a Temporary Skilled Graduate (Class VC subclass 485) visa. His nominated occupation for that visa was cook. As appears below, the applicant claimed that he only made the decision to apply for this visa on the basis of advice received from a migration agent.

8.     On 25 September 2013, the first applicant was granted a Temporary Skilled Graduate (Class VC subclass 485) visa with a nominated occupation as a cook. That skilled visa expired on 25 March 2015.

9.     On 24 March 2015, the applicant applied for the Student visa so as to undertake a Diploma of Nursing. The applicant’s wife and child were nominated as secondary visa applicants. It is this application that is the subject of the present decision under review. Throughout the period of this application, including before the Tribunal, the applicant was represented by his migration agent.

10.     By letter dated 26 March 2015, the Department requested that the applicant provide evidence addressing the temporary entrant criterion. The Department’s request for evidence stated in part:

I note you have recently applied for a Business Sponsorship visa to undertake the role of Production Manager, can you please explain why you [have] now chosen to study Nursing.

11.     On 24 April 2015, the applicant’s representative provided the Department with a statement signed by the applicant in which he provided an explanation for having not pursued further study in the period 2010-2015. By that explanation he attributed the decision to having acted on advice he received from his migration agent. He stated:

Requiring assistance in extending my student visa to complete my Bachelor degree, I acquired the services of Mr Aftab Mohammed, a Migration Agent with SOZ Migration Services, located at 343 Little Collins Street. Mr Mohammad, based on my recently completed Advanced Diploma studies, suggested I apply for a Temporary 485 visa instead of the Bachelor Degree program. Based on his recommendation and assistance, I submitted my 485 visa on 11th August 2010. It is for these reasons that I did not pursue a Bachelor of Business and I confirm that up until speaking with Mr Mohammad I had every intention of pursuing a higher education course.

12.     In summary then, by the time of the Tribunal’s decision in 2017, the applicant had been in Australia, on different visas, for almost a decade. In 2008, he arrived in Australia on a Student visa. In 2013, he was granted a Skilled Graduate visa with a nominated occupation as a cook. One day before the applicant’s Skilled Graduate visa was due to expire, he applied for a Student visa to study nursing doing so on the advice of his migration agent. During a substantial part of that period, he had been employed on a full-time basis as a production manager. Counsel for the applicant quite properly accepted that these matters were not in dispute.

Delegate’s decision

13.     On 7 May 2015, a delegate of the Minister refused to grant the application and gave reasons for so doing. The delegate found that the applicant did not meet the requirements in cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Relevantly, cl 572.223(1)(a) of the Regulations required the Minister to be satisfied that the applicant was a genuine applicant for entry and stay as a student because:

The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)     the applicant’s circumstances; and

(ii)     the applicants immigration history; and

(iii)     . . .

(iv)     any other relevant matter; and . . .

14.     Given the applicant’s study history, his potential circumstances in Australia, his immigration history and the lack of value the course he was studying was to his future, the delegate found that he was not a genuine applicant for entry and stay as a student who intended to stay in Australia temporarily. The delegate further found as follows:

a)     the applicant had previously completed an Advanced Diploma of Hospitality Management and had been enrolled in a Bachelor of Business but had never attempted any study in that course;

b)    the applicant had been named on two occasions as a nominated employee for a Temporary Business Nomination application with a nominated occupation of Production Manager (Manufacturing);

c)     one of those nominations was under review by the Migration Review Tribunal at the time of the delegate’s decision;

d)     the value of the new course of study to his future was questionable; the applicant’s proposed course of study in nursing being unrelated to: his previous studies; his stated occupation in his Temporary Skilled Graduate application and; his nominated occupation in his Temporary Business Nomination application;

e)     although the applicant had provided a statement in response to the Genuine Temporary Entrant criterion, he had not provided any substantial reasons for studying nursing (being a field unrelated to his previous employment or education);

f)     the applicant had been in Australia for nearly seven years on temporary visas or associated bridging visas;

g)     it was five years since he had completed his last course of study;

h)     it appeared as though the applicant had only decided to recommence studying for the purposes of the visa application rather than for reasons of any genuine interest in nursing.

15.     The delegate concluded that the applicant had not provided any substantial reasons as to why he had chosen to study in a field unrelated to his employment or academic background and was not satisfied that he genuinely intended a temporary stay in Australia. The delegate also took into account that, while the applicant intended to work only part-time as production manager so as to be able to pursue a course of study in nursing, his nomination for a full-time position as production manager remained outstanding. The delegate further had regard to the applicant’s study history, potential circumstances in Australia, immigration history and the lack of value of the nursing course to his future.

16.     As the applicant did not satisfy the criteria of cl 572.223(1)(a) of the Regulations, the second and third applicants (being his wife and child) did not satisfy the requirements of cl 572.322(b).

Tribunal’s decision

17.     On 26 May 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. Although the Tribunal immediately invited the applicant to provide material or written arguments for its consideration, he provided nothing at that stage.

18.     As the Tribunal determined that it was unable to make a decision favourable to the applicant on the material before it, on 15 August 2016, it invited him to attend a hearing on 30 August 2016 in order that he might have an opportunity to give evidence and present arguments relating to the decision under review. Again, the Tribunal invited the applicant to provide material in support of his visa application, and noted that he should have regard to the delegate’s reasons in providing any further materials.

19.     On 23 August 2016, the applicant’s migration agent provided the Tribunal with a number of documents, including a signed statement by the applicant and numerous academic records. The contents of that statement were, in substance, copied from the statement provided by the applicant with his visa application. Amongst the documents provided was a letter from Job Training Institute Pty Ltd which stated that the applicant had commenced his Diploma of Nursing on 6 May 2015 and was expected to complete that course on 4 November 2016.

20.     On 30 August 2016, the applicant attended a hearing before the Tribunal with his migration agent and the assistance of a Hindi interpreter. At the conclusion of the hearing, the Tribunal noted that the applicant was only six weeks away from completing his course of study in nursing and for that reason stated, while unconvinced the applicant was a genuine student, it would consider the submission from his migration agent and not make a decision for a period of at least six weeks.

21.     On 19 January 2017, the Tribunal affirmed the decision to refuse to grant the visa and provided a statement of reasons for that decision (Reasons) to which was attached a copy of reg 572.223 of the Regulations. While it was accepted that the background to the application was adequately set out in those Reasons, it is the manner of the conduct of the hearing that is the catalyst for the present application.

22.     In its Reasons, the Tribunal summarised the applicant’s claims as presented at the hearing:

a)     the applicant cancelled his enrolment in a Bachelor of Business (Hospitality) with Victoria University and enrolled at Carrick Institute as it offered the same course for about a third of the price, even though the course at Carrick was unable to provide a degree: [21]-[22];

b)     when the Tribunal noted that the work the applicant had done as a Production Manager was not in hospitality, his field of study, he provided a statement dated 22 August 2016 which explained that he found it difficult gaining employment in hospitality and that he found working with meat revolting: [26]-[27];

c)     the Tribunal asked the applicant about how he had coped with his aversion to meat whilst studying cookery and working at an Italian restaurant, and why he had not studied in India if his interest was vegetarian cooking: [28]-[30];

d)     after noting that the applicant had another visa application under consideration by the Department, the Tribunal informed him that it believed he was seeking to remain in Australia and was not a genuine student: [31]-[32];

e)     the Tribunal believed that although the applicant had given evidence that he came to Australia to complete studies in hospitality and was given a Skilled Graduate visa to gain experience in that field, the reason why he did not get work experience in hospitality was because he was already employed in a totally unrelated field as a Production Manager: [35]-[37];

f)     the Tribunal believed that the applicant’s continuing employment provided a strong incentive for him to remain in Australia: [41];

g)     the Tribunal noted that the applicant’s employment history differed to that presented in the statement dated 22 August 2016, found that this statement was intended to deceive it, and that the applicant was not a reliable witness: [42]; and

h)     the Tribunal concluded that, as the applicant had been in Australia for over eight years and his last study in hospitality was in 2010, his decision to study nursing was made only when his Skilled Graduate visa was due to expire, was motivated by a desire to attempt to remain resident in Australia: [43]-[44].

23.     The Tribunal found:

The applicant has been in Australia for over eight years. His last study in hospitality was in 2010. He was then granted a 485 visa on which he had full study rights. He chose to commence studying a Diploma of Nursing only when his 485 was expiring some five years after he had previously studied.

24.     The Tribunal concluded that the applicant’s study history was not that of a genuine student and having regard to his circumstances as a whole, was not satisfied he was a genuine applicant for entry and stay as a student or that he genuinely intended to stay in Australia temporarily. The Tribunal found that the applicant did not meet the requirements of cl 572.223(1)(a) of the Regulations and affirmed the decision under review. Having found that the primary visa applicant did not meet the essential criteria for a student visa, the Tribunal affirmed the decision to refuse the applications of the secondary applicants: [45]-[50].

The Judicial Review Application and the appeal

8    Before the FCCA, the appellants sought to challenge the Tribunal’s Decision on two grounds. It is unnecessary to rehearse the particulars of those grounds at this juncture. It suffices to note that, by each of them, they alleged that the Tribunal’s Decision was the product of jurisdictional error and that, for that reason, it ought to be set aside and the Tribunal Application ought to be remitted for further consideration by the Tribunal. By the present appeal, the appellants charge the FCCA with having erred inasmuch as it did not accept that the Tribunal’s Decision was tainted by one of the jurisdictional errors that was alleged below.

9    It is not necessary that I should here set out the bases upon which the FCCA dismissed the Judicial Review Application. If, as the appellants contended below (and still contend now), the Tribunal’s Decision was the product of jurisdictional error as alleged, it will follow that the primary judge erred in concluding otherwise and the appeal will succeed. If, as the Minister maintains, the Tribunal’s Decision was unaffected by any such error, it will follow that the primary judge was correct in so deciding and the appeal will fail. Either way, it is upon the Tribunal’s Decision—and, more accurately, it’s conduct in arriving at that decision—that the court’s attention must fix.

10    The appellants prosecute a single ground of appeal (the second ground set out in the written notice of appeal having been abandoned at the hearing before me). It is convenient to set that ground out in full:

1.     The Federal Circuit Court erred by failing to find that the decision of the Tribunal is affected by apprehended bias.

PARTICULARS

a.     During the course of the Tribunal Hearing, the member made comments that were overtly offensive, unnecessarily combative, made constant interruptions, misstated the appellant's evidence and demonstrated that he had pre-determined the outcome of the review, prior to making his decision on the review.

b.     The following comments would lead a fair-minded lay observer to reasonably apprehend a lack of impartiality with respect to the decision:

i.     20 plus? Goodness gracious me. A threat for some of the young girls in your classroom, I would've thought (see Transcript page 7, line 12)

ii.     You are not a temporary student, Mr Singh (see Transcript page 14, line 17)

iii.     You don't make any decisions for yourself, do you? Everybody else makes decisions on your behalf? (see Transcript page 14, line 39)

iv.     Oh yes, I live near a hospital too. It never prompted me to want to be a nurse or a doctor (see Transcript page 15, line 18)

v.     Mr Singh, the situation is I don't believe you're a genuine student. (see Transcript page 20, line 10)

vi.     I don't believe your history indicates you're a genuine student, for the reasons that I've just mentioned to you. However, I have read a substantial submission from Mr Wilson and it makes sense because he happens to be an excellent migration agent. And he makes the case that the situation is this fellow is a genuine student he claims, I don't think I accept it but, and he's only six weeks away from finishing.

So the situation is that, I've got to say to you, I'm not convinced you're a genuine student, however I'll accept Mr Wilson's submission and therefore it is my intention not to make a decision in this matter for at least a period of six weeks. (see Transcript page 20, line 15)

vii.     Well, the situation is that, Mr Wilson will explain to you what that decision means, but what I'm telling you is that I've made a decision that I won't be making a decision on this for at least six weeks and, well, no that's probably not a fair statement. (see Transcript page 20, line 32).

Statutory framework

11    The statutory provisions relevant to this matter are short in compass and can be briefly summarised. The Minister’s Decision to refuse the Visa Application was made pursuant to s 65 of the Act. It qualified as what the Act refers to as a “Part 5-reviewable decision”: the Act, s 338. The Tribunal Application was made pursuant to s 347 of the Act and the Tribunal’s power to make the decision that it made—namely, to affirm the Minister’s Decision—was conferred upon it by s 349(2).

12    The exercise of that power was conditional upon the Tribunal first extending to the appellants an invitation “…to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the [Minister’s Decision]”: the Act, s 360(1). The sole issue arising in the present appeal is whether that statutory precondition was met.

13    The requirement that an applicant under s 347 of the Act be invited to attend a hearing is for more than merely the extension of an invitation. The invitation must also be honoured, in the sense that an applicant who accepts it must be afforded a meaningful opportunity to present evidence and argument relevant to his or her application.

14    In the present matter, there is no doubt that a hearing—namely, the Tribunal Hearing—took place. At issue is whether that hearing bore the qualities that s 360 of the Act required: in other words, did it afford the appellants a meaningful opportunity to present evidence and argument relevant to the Visa Application? If it did, the Tribunal’s Decision will be beyond the attack that the appellants here seek to prosecute. If it did not, then that attack will succeed.

15    It was not disputed that a hearing conducted by a Tribunal member who had previously formed a concluded view about the disposition of a matter brought before him pursuant to s 347 of the Act was not a hearing of the sort that s 360 of the Act contemplates. It is to that issue that attention can now conveniently turn.

Bias: Applicable principles

16    The appellants maintain that the Tribunal Decision was the product of, or was improperly actuated by, bias on the part of the member who heard and determined the Tribunal Application. It is said that he did not approach that application with a mind open to persuasion; that, instead, he determined it according to preconceived prejudices inimical to the appellants’ prospects of success. Those realities (as the appellants allege them) are said to reflect the manner in which the Tribunal member conducted the Tribunal Hearing. They complain that he was variously offensive, dismissive, and combative toward Mr Singh, to a degree that demonstrated that he had pre-determined the outcome of the Tribunal Application and was not open to be persuaded that the Minister’s Decision should be reversed.

17    There is little, if anything, in the way of dispute as to applicable legal principles. The FCCA Judgment contains the following helpful and comprehensive summary in that regard, which, again, I gratefully adopt (footnotes omitted):

34.     The parties were agreed as to the applicable principles. The following propositions are largely taken directly from their respective submissions.

35.     Apprehended bias operates in support of the maintenance of confidence in administrative decision-making. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process, which is an element of the lawfulness of the outcome.

36.     Allegations of apprehended bias are assessed by reference to the hypothetical construct of the informed fair-minded lay observer. It is an aspect of the rules of procedural fairness and is directed to the necessity for executive power to be exercised, and to appear to be exercised, fairly. As a breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution, this court may grant relief for a breach of that obligation. Where apprehended bias exists, the decision-maker cannot fulfil his or her statutory function. In the result, where a decision is made it is…affected by jurisdictional error (such decision being no decision at all).

37.     To establish apprehended bias based on prejudgment, the applicant must prove that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the determination of the application for review. A challenge based upon apprehended bias must be “firmly established” or “clearly proved”. It is insufficient that the observer may have “a vague sense of unease or disquiet” about the decision-making process. To those ends, the court must apply “realistic criteria” in determining whether or not there was an apprehension of bias. The Tribunal’s proceedings are inquisitorial, which is different to civil litigation before a judge where parties are representing their own interests through lawyers.

38.     The test has been restated as being whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the court might not bring a fair, impartial and independent mind to the determination of the matter on its merits. This formulation of the test brings to attention the need to qualify the objective fair-minded lay observer by attributing to them such knowledge so as to be appropriately informed of the relevant facts and circumstances, including importantly, knowledge of the statutory framework within which the allegation of bias is being raised. The lay-observer assessing possible bias is taken to be aware of the nature of the decision and the context in which it was made, with knowledge of the circumstances leading to the decision.

39.     Importantly, the rule against bias does not require the absence of any predisposition or inclination for or against an argument or conclusion. The underlying principle is that the Tribunal ought to have (and be perceived to have) an open mind, not that it must have an empty mind: “[t]he question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”. It must appear that the decision-maker remains open to persuasion until their function is completed. Thus, the applicant must show that the bystander might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion (e.g., that the applicant was not a genuine student) as to be incapable of alteration, whatever evidence or arguments the applicant might present. The test is objective.

40.     The qualifying words “fair-minded” play a central part in the assessment. They direct attention to an assessment of the behaviour of a person in a position to exercise power in respect of another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power. One way in which unfairness, or the appearance of unfairness, may be apparent is if the decision maker is seen not to be open to persuasion, or has approached their task with some premature determination of some or all issues.

41.     In making an evaluative judgment as to whether a Tribunal’s conduct gives rise to apprehended bias, the court must recognise that the Tribunal is entitled to engage in a “robust and forthright testing” of an applicant’s claims and evidence. In that context, it is apt to have regard to the inquisitorial role of the Tribunal, which the bystander is taken to be aware of. As the Full Court has observed: “The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality”. In particular, an expression of disbelief of particular evidence does not of itself give rise to apprehended bias: in context, it may be a permissible way of inviting an applicant to address a concern.

42.     Just as robust or vigorous questioning is permitted, and may be called for, occasional displays of impatience and irritation, whether justified or not, do not necessarily amount to disqualifying bias. However, such displays may be one particular of an apprehension of bias, and may in themselves support an apprehension depending on the seriousness of the display. Sustained ill-temper can give rise to a reasonable apprehension of bias. Yet, questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court; what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. A relevant consideration is whether other language was available to test the claims or evidence of an applicant, as opposed to the harsh and definitive language actually used.

43.     As the Full Court explained in Sharma v Minister for Immigration and Border Protection:

. . . [T]he Tribunal, in the performance of its statutory task of review under the Act is not precluded from testing the applicant’s case by posing questions which challenge the version of facts put forward by the applicant. That question may be robust and even confrontational . . .

The nature of the assessment by the Court of whether a hearing is affected by apprehended bias is governed by the need to strike a balance between competing requirements of the legal system. On the one hand, a too demanding a standard for decision-makers will have a chilling effect on the exercise of their function as independent decision-makers . . . On the other hand, a too lax standard applicable to decision-makers will threaten the confidence of the public and the parties in the fairness of the process of the system. (Emphasis added)

44.     While “the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude”, the reasonable bystander would appreciate that decision-makers “sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”. Also, the court, in assessing whether the Tribunal has by its words or conduct “crossed the line” such as to give rise to apprehended bias, is not blind to the evidence presented to the Tribunal. In particular, a reasonable lay bystander may take into account, in assessing the Tribunal’s conduct, that the Tribunal was being presented with an apparently weak case.

45.     Particular reliance was placed upon the recent statements of principle in Jatin v Minister for Immigration and Border Protection (a case in which both counsel appeared). There Mortimer J explained:

. . . In an inquisitorial setting such as that before the Tribunal, it is important that the Tribunal is able to express doubts it has about an applicant’s evidence or the consistency of narratives given by an applicant, or the reliability of information or other material presented to the Tribunal. If the Tribunal does not test that material, there is no one else to do so. If the Tribunal does not make an applicant aware of its concerns, its concerns may go unaddressed and unanswered.

On the other hand, as the authorities disclose, there will be a line – to be drawn on findings of fact on judicial review by a court based on the evidence and circumstances of each particular case – beyond which the Tribunal’s inquisitorial method trespasses into prohibited areas... It may be because the nature of the questioning or its style, suggests the Tribunal has prejudged the outcome of the review as a whole or certain aspects of its fact-finding, denying the applicant the fair hearing to which she or he is entitled. The evidence may prove that during the very opportunity which the applicant has for persuasion, the Tribunal has already closed its mind . . . (Emphasis added)

46.     It is a question for judgment, including by reference to matters of impression, in determining when expressions of opinion by a decision-maker have crossed the threshold into creating the appearance of predetermination. As counsel for the applicant submitted, this can be a difficult judgment to make, and will depend on all of the circumstance of a particular case. A balance is required to be struck between a decision-maker discharging an inquisitorial role, being free to question and even vigorously test an account of facts being advanced by a claimant, as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration.

47.     In the ultimate analysis, the court is required to assess, objectively, whether a lay-observer with awareness of the nature of the decision, the context in which it was made and with knowledge of the circumstances leading to the decision, might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion as to be incapable of alteration – whatever evidence or arguments the applicant might have presented. I apply these principles to the application.

Was the Tribunal Hearing tainted by bias?

General observations

18    The appellants point to a number of exchanges as between Mr Singh and the Tribunal member who conducted the Tribunal Hearing. Those exchanges, they contend, reflect not merely a want of professionalism and restraint on his part; but also and more tellingly, a predisposition against the granting of the Visa Application. I will address the particular exchanges upon which the appellants rely but, before doing so, it is appropriate to make some more general observations.

19    An audio recording of the Tribunal Hearing was made available to the court and, at the hearing of the appeal, counsel for the appellants urged me—and I undertook—to listen to it. Having done so, I accept that the Tribunal Hearing proceeded, at times, with a regrettable air of forthrightness that perhaps would have best been avoided. On any view, it was plain throughout the course of the hearing that Mr Singh’s explanation for having undertaken a course in nursing (and for requesting a visa so that he might continue with it) was one that the Tribunal member met with more than a little scepticism. There were times during the hearing where no obvious attempt was made to disguise that scepticism. Some of the exchanges that the Tribunal member had with Mr Singh were regrettable and ill-advised.

20    Nonetheless, I do not accept that the Tribunal’s behaviour throughout the course of the Tribunal Hearing betrays anything more than scepticism as to the authenticity of Mr Singh’s narrative. That narrative, as the appellants’ counsel put it, was “not the strongest one would ever see”. That, with respect, was something of an understatement; but to observe as much is to contextualise, rather than to excuse, the Tribunal’s conduct. I accept, as the appellants submitted (and as the Minister, quite properly, did not challenge), that if the conduct of the Tribunal was such as to exhibit bias (and, thereby, a denial of the opportunity to present evidence and argument that it was obliged to afford the appellants), jurisdictional error would be established; and it would be established independently of the strength or weakness of the substantive case that the appellants sought to prosecute.

21    The appellants’ counsel submitted—and I accept—that the existence of jurisdictional error in this case calls for an assessment of the quality of the Tribunal Hearing as a whole. There is no single exchange that is said to be definitive. At issue is whether that hearing, as a whole, was of the character that was required: that is, whether it served as an opportunity through which the appellants could properly advance the contentions that they wished to have considered in support of the Visa Application. If it lacked that character, then the decision that followed will not have been a decision that the Tribunal was authorised to make: it will, instead, have been a decision tainted by jurisdictional error.

22    I do not accept that the exchanges that took place at the Tribunal Hearing between Mr Singh and the Tribunal member rose to a point indicative of bias. As the above recitation of legal principle records, there is a line that separates robust observations from a closed mind. Forthright though many of the exchanges upon which the appellants rely were, I do not accept that they fell on the wrong side of that divide. In particular, I do not accept that they accumulated to the point that the Tribunal Hearing might fairly be impugned in the way that the appellants seek to impugn it.

The specific exchanges upon which the appellants relied

“To eat in good restaurants?”

23    In the written submissions filed on their behalf for the purposes of this appeal (hereafter, the “Appellants’ Submissions”), the appellants observed:

At page 1, line 42 through to page 2 line 9 [of the written transcript of the Tribunal Hearing], the Tribunal commences the hearing in an insufficiently serious manner, asking whether the applicant having arrived in Australia “for hospitality” was “To eat in good restaurants”. Objectively minor, this sets the tone for the hearing as being something other than the serious and solemn occasion that the applicant was entitled to expect.

24    It is not suggested that that exchange is itself indicative of the Tribunal member approaching the Tribunal Hearing with a mind not open to persuasion. Having listened to the audio of the exchange, I do not accept that much can be made of it. Mr Singh was asked why he came to Australia and his answer was, “I came for hospitality”. That answer was, on any view, less descriptive than it perhaps should have been. The comments that followed were exploratory: the Tribunal member asked, “What does that mean?” and then gave a few possible explanations for what “I came for hospitality” might be thought to imply. One was “to eat in good restaurants”. The tone of the exchange was not aggressive; it merely reflected the Tribunal member’s discontent with the unhelpful imprecision inherent in the answer that he was given.

“Were you a slow student at school?”

25    The Appellants’ Submissions contained the following observations:

18.     At page 6 line 21 and following, the Tribunal is engaging with the applicant in relation to when he finished secondary schooling in India, and says “What were you a slow student at school?” This is an inappropriate remark, not relevant to the issues at hand, and contributes to the development of an apprehension that the Tribunal might not be applying exclusively the relevant legal criteria. This exchange leads to the realisation on page 7 line 11 and following, that the applicant was “20 [years] plus” when he finished his secondary schooling. At this point, the Tribunal diverts into an offensive and humiliating discussion about the applicant being a “threat” to young girls in the classroom and apparently criticises him for being an “old man” at the time of finishing his secondary schooling.

19.     This is utterly unacceptable. It is sexist, presumptuous, insulting, and most importantly apt to belittle the applicant in relation to his capacity to achieve academically, which was relevant to the critical issue in the review – whether he was a genuine student.

26    I do not accept the characterisation sought to be applied to the exchange in question. The exchange began with the Tribunal member inquiring about Mr Singh’s age at the point that he finished his schooling. The member suggested that Mr Singh might have been somewhere in the vicinity of 18 years of age. Mr Singh replied, simply, “no, more”. The Tribunal member, again in an exploratory way, observed, “More? What, were you a slow student at school—most students finish when they’re 17 or 18.” The worst that might be said of that exchange is that the Tribunal member might have identified other, less confronting possibilities by way of exploration as to why Mr Singh was older than 18 when he finished his schooling.

27    What then followed was a confusing submission about Mr Singh being from a “joint family”. When the Tribunal member attempted to bring the discussion back to the issue of Mr Singh’s age at the time that he finished school, the following took place:

Tribunal member:    How old were you when you finished [school]

Mr Singh:        [after pausing to consider] I finished in 1990

28    Mr Singh then made a further comment that neither the audio recording nor the written transcript of the Tribunal Hearing picked up. The Tribunal member appears not to have comprehended it either. He asked Mr Singh to clarify his answer but, before that clarification was given, he added, “Most people remember how old they were when they finished school. You struggling?”

29    Mr Singh then answered, “twenty plus”. That was met by a measure of surprise from the Tribunal member, who responded:

Twenty plus?! Goodness gracious me! A threat for some of the young girls in your classroom, I would have thought.

30    The Tribunal then appeared to accept Mr Singh’s answer, noting that he “…came [to Australia] when [he was] 32” and that, in the “12 years” between his finishing school and his arrival in Australia, he worked as a porter in his family’s business and did a “diploma in computers for about a year”. Whatever might be said about the exchange, I do not accept that it betrays a predisposition to reject the Tribunal Application, nor even that it was consistent with such a predisposition. The tone of the exchange betrays nothing more than a sense of surprise on the Tribunal member’s part as to how old Mr Singh was when he finished school. The appellants’ characterisation of the exchange as “sexist, presumptuous, insulting [and] belittl[ing]” is, with respect, overblown. The worst that might be said of it was that it was overly informal and/or unnecessary. That is not, whether alone or in combination with other exchanges, sufficient to stigmatise the Tribunal Hearing as one that fell short of what the Act required.

“You’re not a child anymore”

31    The Appellants’ Submissions (again referring to the written transcript of the Tribunal Hearing) stated:

20.     On page 10, the applicant is starting to develop his evidence about a claim that his one-time migration agent had led him astray. In response to that, at line 33 and following, the Tribunal commences a sort of homily about his pre-determined views in relation to individual responsibility. During that monologue, the Tribunal tells the applicant that “he’s not a child anymore” and tears into the applicant about having raised the claim: “Why?” “What for” You screw your mouth up so I don’t know”

21.     That is very troubling. The Tribunal plainly has predetermined views about the legitimacy of a complaint at having been misled by a migration agent, perhaps based on experience in other cases. Drawing on experience from other cases is not illegitimate, but it is illegitimate to presume that the applicant’s claims fit within the unhappy examples of such earlier experiences without at least hearing him out.

22.     Further, it is difficult to understand why the Tribunal should have inherently had any difficulty with a claim that the applicant had sought out, received, and followed the advice of a migration agent. The industry is regulated by the Commonwealth and exists in part to assist prospective visa applicants select which migration options to pursue. Short of fraud, having received poor advice does not have legal relevance for the options that were in the end pursued, but that might be a decisive consideration in weighing up whether a person is, subjectively, a genuine student. Thus, this predetermined view related to an important issue in the review. It contributes substantially to the relevant apprehension.

32    It is appropriate to set out in full the exchange to which those contentions pertain. It began during the Tribunal’s exploration of why Mr Singh stopped his hospitality studies in June 2010. Invited to confirm that he “didn’t go on any further” with his hospitality studies or skills, Mr Singh responded in a largely unintelligible way. He appeared to suggest that somebody had misled him in some way, to which the Tribunal member responded, “Sorry?” After a pause, during which Mr Singh offered no clarification, the Tribunal member continued, “I don’t understand what you’re trying to tell me”. Mr Singh then explained that he had been to an immigration agent, Aftab Mohammed, who “…put my 485 visa”. The precise nature of his response is not clear, either from the transcript of the hearing or the audio recording. Either way, it elicited the following “monologue” (as the appellants described it):

The thing that troubles me I’ve got to say, Mr Singh, and it troubles me greatly, are people that come here and, “Oh, it was the agent that made me do it or told me to do it”. You’re not a child anymore. At this stage you’re 34, 35 years old. You’ve come here to study hospitality because you want to take your uncle to give you your share of the business and go back home and start your own business.

You’ve done all the hospitality studies; done all you’ve came here for. It’s time to go home and set up our business and get things up and running and get the family off and going. Oh no, but Aftab Mohammed said to me, “what you should do is apply for a 485 visa.” Why? What for? You screw your mouth up so I don’t know.

33    Respectfully, I do not accept that anything of any significance can be made of this exchange. The Tribunal member was simply challenging why it was that, having come to Australia apparently for the purposes of studying hospitality, Mr Singh ceased his studies in 2010 and was prompted, thereafter, to acquire a subclass 485 visa. Mr Singh appeared to attribute that decision to his immigration agent. The Tribunal member was perfectly entitled to examine—cross-examine, even—Mr Singh’s responses, including by questioning his apparent attribution of his decision to obtain that visa to his immigration agent. The exchange was forceful; but it does not suggest any predisposition on the part of the Tribunal member as to the outcome of the Tribunal Application.

Expression of concluded view

34    The Appellants’ Submissions then contended (again referring to the written transcript of the Tribunal Hearing):

25.     At page 14, line 5, the Tribunal tells the applicant that it thinks that back in 2009, the applicant never had any intention to work in the experience of the hospitality industry (in context, that meant that the Tribunal did not think that the applicant ever intended to comply with the conditions of his subclass 485 visa). This is a significant statement of a concluded view that is highly prejudicial to the applicant’s interests in the review (it suggests that he takes lightly his obligation to comply with visa conditions), in circumstances where this topic was not the focus of discussion and was not apparently in issue in the review. The Tribunal just looked at some of the facts – advanced for the purpose of addressing the question whether the applicant would be a genuine student – and said those facts indicate that many years ago, the applicant had never intended to comply with his 485 visa conditions. That is highly indicative of a mind that was not interested in hearing the applicant’s evidence or arguments, and of a mind that might have had a predetermined view about this case.

26.     If there were any doubt about the possibility of a closed mind, the final paragraph of that monologue on page 14 extinguishes the doubt – without having finished the hearing to which the applicant was entitled, the Tribunal states in unambiguously conclusively terms – “you’re not a temporary student, Mr Singh”. This spontaneous, reflexive remark would simply not have been made by a Tribunal that brought an open mind (cf it need not bring an empty mind to the hearing).

27.     The concerns are fortified by the insulting statement made at page 14, line 43 “You don’t make any decisions for yourself, do you? Everybody else makes decisions on your behalf?” and the insulting statement (especially given the tone, which is sarcastic and belittling) at page 15, line 19 “Oh no, I know what I’ll do, I’ll be a nurse. Hello? Why?” (and continued at line 24).

28.     Then, the Tribunal cuts off the applicant in the middle of his giving a response to this confrontation and commences another monologue which is plainly inconsistent with giving the applicant a meaningful opportunity to give evidence and present arguments at the hearing (line 30 and following).

35    Again, it is convenient to set out the exchange in some detail. It began when the Tribunal member explored what Mr Singh did after he obtained his subclass 485 visa. Mr Singh indicated that he secured employment with a business known as Ostindo International. The Tribunal member asked, “And you were what—the catering manager there or the cook, or…?” Plainly, that question reflected the nature of the visa that Mr Singh had, by then, obtained: having undertaken some hospitality studies, it was assumed that he would secure (or at least attempt to secure) employment in some kind of related role.

36    The following exchange then took place:

Tribunal member:    What I’m saying is you get the 485 visa and you’ve got to get a job working to give you, you know…working in the field that you’ve got your study/training in; and what job did you get?

Mr Singh:        I was working in the production

37    It was that answer that prompted the remarks upon which the appellants fix:

Tribunal member:    Righto, here's where I start to have problems with your story Mr Singh; because the situation is, you say, "I was on a tight schedule. I finished my studies in June 2010. I got a 485 visa." A 485 visa is there to allow you to get work experience in the field that you've studied. You don't do that and the reason you don't do that is because you're working with Ostindo, not from June 2010 when you finished study. No. You started with Ostindo, back in when, in 2009? March 2009 was it?

Mr Singh:         Around March I think.

Tribunal member:     Around March 2009. So you, in fact, had been working with a company since 2009—for over a year—when you finish your studies and you get a 485 visa; and I don't believe you ever had any intention to work in the experience of the hospitality industry which is where you came from, because you had a job working as the, what was it, the production manager I think you called yourself..?

Now, not only that, reading from the primary decision, they nominated you for a full-time position as production manager. What's going on? You've got somebody, you've got a business that you've worked for for seven years, who says, "Listen, let's put in a visa application for you as a full-time production manager, because we'll give you a job here and that'd be fabulous wouldn't it?" And you say, "Yeah, that's a good idea."

How can you do that on one hand and on the other hand turn around to me and you'd say, "No, no, no, no, no. I want a temporary student visa." You're not a temporary student, Mr Singh. That indicates to me that what you want to be is that you want to live in Australia.

Mr Singh:    No. I [unintelligible] be part-time work and [unintelligible] 485 visa.

 Tribunal member:     You're going to be what?

 Mr Singh:         A part-time [unintelligible].

 Tribunal member:     Why?

 Mr Singh:         Because –

 Tribunal member:     Why wouldn't you work full-time?

Mr Singh:     When I got a visa I'm looking for my, you know, a job [unintelligible].

Tribunal member:     Why look for a job, you've got one? You're the production manager at Ostindo.

Mr Singh:     Because you need - you said I would look [unintelligible] but it's not [unintelligible]. My friends, I've got [unintelligible].

Tribunal member:     You don't make any decisions for yourself, do you? Everybody else makes decisions on your behalf?

 Mr Singh:         No

 Tribunal member:     It’s not your plan, it’s his plan?

38    Again, accepting that the exchange that took place might fairly be described as direct, I do not accept that it symbolises anything more than an unsurprising level of scepticism about what, to that point in the hearing, was the increasingly unpersuasive narrative that Mr Singh was articulating. The Tribunal member was entitled—if not obliged—to put to Mr Singh the scepticism that appears very clearly to have formed in his mind. That he did so reflects not that he was not open to be persuaded; it reflects that what Mr Singh was saying was unpersuasive.

39    That narrative became less persuasive still when Mr Singh next introduced his plans to “go for a…profession as a nurse”. The Tribunal member, at that point, raised the obvious point:

Tribunal member:    Why would you go for [a career as] a nurse? You’ve got a business to go back to at home. You’ve got a production manager’s business here in Australia; and you say, “oh no, I know what I’ll do: I’ll be a nurse.” Hello..?! Why?!

40    Mr Singh’s attempt to explain his unlikely career pivot was not persuasive. He began by explaining that, at the top of a hill near his home was a large public hospital. It is anything but apparent how that might offer some explanation for what the Tribunal was exploring. It prompted the Tribunal member to interject:

Tribunal member:    Oh yes. I live near a hospital too. It never prompted me to want to be a nurse…

41    In reply, Mr Singh indicated that he had decided to have a family and that he “…need[ed] some skills as well”. That prompted another fairly obvious interjection from the Tribunal member:

Tribunal member:    You’ve got skills. You’re fully qualified and you’re in the hospitality business and your family owns a business. You can get a part of it and go home, set up your own business. You’re fully qualified. That’s what you came here for.

42    Over an extended pause, Mr Singh offered no response. The Tribunal member then added:

Eight years ago. Eight years ago.

43    Again, Mr Singh did not attempt any response. The Tribunal member continued:

If you wanted to be fully qualified in the hospitality industry, how long do you reckon it’d take, from…starting from nothing?

44    Mr Singh did not respond. The Tribunal member continued:

If my son came to me and said, “Dad, I think I want to go over to study overseas and I’d like to study to be in the hospitality industry. Would you pay for it?”…“Oh yeah, I suppose. How long will it take?” What do you think the answer would be? How long will it take? Three years, maybe? Three years.

Okay. So he does that and then he rings and he says, "Oh Dad. I've got a job working at a place. That's all right. I'll get a visa that I can stay and work for a while." and, "Oh that visa's about to run out but I wouldn't mind hanging around. So I know what I'll do, I'll start studying in something completely different. Dad, I think what I'll do now is I think I'll do nursing." And I go, "Oh okay, nursing that's interesting. How long will nursing training take?"

Mr Singh:         Two years.

Tribunal member:     Two years.

Mr Sing:         My one is 18 months.

Tribunal member:     Let’s call it two years. So if you came here to qualify in the hospitality business it'd take three years; and if you came here to do nursing it'd take two years. So, all up, if you did them both, you could do them in five years. You've been here eight years and you say, "Oh yeah but I'd just like another visa to do some more study." Hello? What's going on?

45    Again, I do not accept the appellants’ contention that that exchange illustrates any failure to afford them a meaningful opportunity to give evidence or present argument. The exchange was plain-spoken, perhaps blunt; but only to a point that reflects the apparent improbability of Mr Singh’s academic and vocational trajectories. Mr Singh was entitled to have put to him the scepticism that formed—unremarkably, it must be said—in the Tribunal member’s mind.

“I’ve got real [difficulties] with you, Mr Singh”

46    Later during the Tribunal Hearing, the Tribunal member and Mr Singh discussed the work that Mr Singh had performed, in and prior to 2013, at a café in Fitzroy and a restaurant in Frankston, Victoria. Mr Singh had earlier explained that, as a vegan, he did not like working with meat products. The Tribunal member explored with him how that might be consistent with his having worked in those establishments, where, as he conceded, he worked with meat.

47    After a somewhat circular exchange, the Tribunal member said, abruptly:

“I’ve got real difficulties with you, Mr Singh, I’ve got to say.”

48    The appellants submit that a “fair-minded observer would be aghast at this statement” and that “there is no room for a member’s personal sentiment, beneficial or adverse, in the Tribunal.” Respectfully, I do not accept that. The Tribunal member’s comments were not a personal attack on Mr Singh and did not reflect any personal animus directed his way. Although the Tribunal member might have chosen his words more carefully, it is plain from context that he intended only to convey his views that Mr Singh’s narrative—namely, that he intended to remain in Australia so that he could undertake studies in nursing, having earlier undertaken hospitality studies and worked in a production management capacity—was singularly unpersuasive.

49    I do not accept that the comments that the appellants highlight betray any failure to afford them a hearing of the kind to which the Act entitled them.

“I couldn’t care less what your ID card says”

50    The Tribunal next explored with Mr Singh some detail surrounding the nursing studies in which he had apparently enrolled. Mr Singh was asked when those studies were due to complete and, after some hesitation, he responded, “In November, sir”. The Tribunal member then pointed out that Mr Singh’s “COE” (which I infer was a reference to a certificate of enrolment) said that it was, in fact, October that the course was due to complete. The Tribunal member then said, “I’m staggered that you don’t know when it is”.

51    Mr Singh later indicated that his “ID card says in November”, to which the Tribunal member responded, “I couldn’t care less what your ID card says. What I’m asking you is, when does your course finish?” That exchange was needlessly aggressive. It continued:

Mr Singh:        End of October

Tribunal member:    When in October?

Mr Singh:        24 or 25.

Tribunal member:    You don’t know. Toss a coin in the air…

52    That exchange was also regrettable, to say the least. There is little doubt that the Tribunal member would have been better advised to keep his frustrations in check and maintain a more professional tone. But to observe as much is not to accept that the hearing lacked the qualities that the Act required. That Mr Singh appeared, in the absence of consulting an identification card, unsure as to when the course in which he had enrolled was scheduled to complete was but another layer of curiosity inherent in the narrative that he had sought to prosecute. That that narrative had inspired a degree of incredulity on the Tribunal member’s part was hardly surprising. There is nothing untoward—at least not in a sense that bespeaks jurisdictional error—with the Tribunal having communicated its scepticism, nor with its having done so in terms that were blunt or even discourteous (although, obviously enough, one might presume that at least some effort should be made to avoid incivility). Although the appellants have at least some reason to protest the way that Mr Singh was treated, I do not accept that that treatment was sufficient to reflect jurisdictional error.

No decision for six weeks

53    Toward the end of the Tribunal hearing, the Tribunal member made reference to a written submission advanced on the appellants’ behalf by their agent, a Mr Wilson, who was also present at the hearing. Mr Wilson, upon invitation from the Tribunal, made the observation that Mr Singh’s nursing course only had “six weeks to go”. The Tribunal member, in response, directed the following observations toward Mr Singh:

I don't believe your history indicates you're a genuine student, for the reasons that I've just mentioned to you. However, I have read a substantial submission from Mr Wilson and it makes sense because he happens to be an excellent migration agent. And he makes the case that the situation is, “this fellow is a genuine student” he claims—I don't think I accept it but—“and he's only six weeks away from finishing”.

So the situation is that, I've got to say to you, I am not convinced you're a genuine student. However, I accept Mr Wilson's submission; and therefore, it is my intention not to make a decision in this matter for at least a period of six weeks. Now, what that means is that, regardless of the decision that I make, it will enable you to complete your studies and to return home, which is what you say you want to do as soon as you've completed your studies. Is that correct?

54    The appellants submit that, “…by the end of the hearing, the Tribunal had plainly closed its mind to the outcome – yet the review was live for another six weeks” and that “[d]uring that time, the fair-minded observer would have known that as a matter of concrete fact, the Tribunal was not prepared to change its mind about the outcome of the review [despite its having] to kee[p] a mind open to persuasion.”

55    Respectfully, I do not accept those contentions. I accept that, by the end of the hearing, the Tribunal had very likely formed the view that the Minister’s Decision should be affirmed. It may, as the primary judge reasoned (FCCA Judgment, [108]), have been a view that remained subject to closer consideration of the written submission prepared for the appellants by their agent, Mr Wilson. But even assuming that it wasn’t, that is neither uncommon nor untoward. The Tribunal cannot be criticised for having formed a view once the opportunity for persuasion was at an end. Indeed, the appellants’ observation that the Tribunal was obliged to keep a mind open to persuasion even after the hearing and the receipt (and consideration) of written and oral submissions begs the question: by what further circumstances, submissions or evidence might its decision have been guided?

56    The Tribunal’s intention to defer the making of a decision was, more likely, an intention not to give statutory expression to what it appears to have concluded: namely, that the Minister’s Decision was correct and should be affirmed. That, in turn, appears to have been a gesture made in consequence of the esteem in which the Tribunal held the appellants’ agent, Mr Wilson.

57    Regardless, there is nothing inherent in the Tribunal’s decision to defer its resolution of the application before it that impugns the quality of the hearing that the appellants were afforded.

Conclusion

58    Although the Tribunal Hearing was punctuated by exchanges that might best have been avoided or moderated, I do not accept that it fell to a standard at or below which a fair-minded lay observer might reasonably have had cause for concern that the Tribunal had formed a concluded view about the application that no submissions or evidence could have dislodged. With respect, the primary judge was correct so to decide. The appeal should (and will) be dismissed with the usual order as to costs.

Associate:

Dated:    30 September 2020