Federal Circuit Court set aside decision of tribunal on the basis of apprehended bias, in favour of an Indian Student

Singh v Minister for Immigration & Anor [2016] FCCA 2343 (21 September 2016)

Background

4. The applicant is a citizen of India. He first came to Australia in March 2009. At that time he was the holder a student visa.[2]He applied for a Skilled (Provisional) (Class VC-485) visa, this was granted and was valid for 18 months between 22 November 2012 and 22 May 2014. His application for the visa, the subject of this review, was made on 21 May 2014. His statement of reasons for wanting to study a Diploma of Marketing and an Advanced Diploma of Marketing, was that those courses would qualify him to be a team leader or supervisor in the automotive industry.[3]Since arriving in Australia, the applicant had completed a Certificate III in Automotive Mechanic Technology, a Certificate III in Automotive Specialist, a Diploma in Business, and a Diploma of Frontline Management.[4]
5. The Minister’s delegate refused the application on the basis that she was not satisfied that the applicant met the requirements of cl.572.223(1)(a) of Schedule 2 to theMigration Regulations 1994(Cth) (‘the Regulations’).
6. At the time of the Tribunal hearing, the applicant had commenced a Diploma of Marketing course which was scheduled to end in January 2016. He proposed to then undertake a Diploma of Management course which would end in August 2016.[5]
7. He was, at the time of the Tribunal hearing, working full time as a security guard with MMS Security.[6]
8. The applicant was invited to attend at the Tribunal hearing to give evidence and present argument. He was also given a copy of the relevant Ministerial Direction, Direction No.53.[7]
9. The date fixed by the Tribunal for the hearing was apparently not suitable for the applicant’s representative[8]and accordingly the Tribunal wrote to the applicant advising that it had re-listed the matter for a later date.[9]
10. The applicant’s representative submitted materials to the Tribunal. Those materials included a statement of the applicant entitled “Statement Addressing Genuine Temporary Entrant Criteria”.[10]

Tribunal hearing

11. The Tribunal hearing took place on 5 February 2015.
12. The applicant gave evidence. He was questioned closely by the Tribunal member about some aspects of his explanation for seeking to pursue further studies and the apparent change in direction of his career aspirations.
13. The issue was identified by the Tribunal as being whether the applicant met the criteria of cl.572.223(1)(a).
14. As it was required to do, the Tribunal had regard to the matters identified in Ministerial Direction No.53,[11]noting that the Direction was to be used as a guide only and not a definitive checklist. It kept in mind that the factors were to be used in weighing up the applicant’s circumstances as a whole.[12]
15. The Tribunal specifically acknowledged having received the materials forwarded to it on the applicant’s behalf and confirmed on two occasions that it had taken them into account.[13]
16. The Tribunal considered all of the factors identified in Direction No.53 and not simply those identified by the applicant in his statement.[14]
17. The Decision Record discloses a lengthy and comprehensive recital of the applicant’s evidence. In particular, the Tribunal noted that it raised with the applicant a number of aspects of his evidence that it regarded as problematic for his case. It invited his response to those areas. Having considered the evidence of the applicant, the Tribunal made the following findings:
    The applicant’s immigration and academic history however satisfies the tribunal that the applicant is strongly motivated to remain in Australia for employment reasons.”[15]“The tribunal is also satisfied and finds that the applicant is attempting to use the student visa program to circumvent the intentions of the migration program.”[16]“… The tribunal does not accept the applicant’s claim that his studies in management and marketing will assist him to obtain an operations manager or manager position in India. Such a claim appears as no more than a ‘throwaway line’ without substance. For similar reasons the tribunal places no weight on the documents provided by the applicant referring to a drug epidemic occurring in the Punjab.”[17]

18. The ultimate finding of the Tribunal was expressed as follows:“On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).”[18]
19. For those reasons, it affirmed the decision under review.

In my view, the following paragraphs from the judgement really sum up the issue of procedural fairness and apprehended bias –

54. The Tribunal summarised the evidence of the applicant in considerable detail. Significantly, it dealt with the exchange about the conversation with the uncle at paragraph 24 of the Decision Record:
    “He said that his uncle spoke with him andtold him to return to Australia to file the review and wait for the decision (referring to the tribunal process) …”[41]

(emphasis added)

55. As noted above, this was wrong. The Tribunal did not make any express finding that the applicant had fabricated this conversation, or that it demonstrated an inconsistency that reflected on his credit. The Decision Record shows that the Tribunal did not make findings as to the reliability, truthfulness or plausibility of specific aspects of the applicant’s evidence. It expressed its findings in terms of not being satisfied of the applicant’s genuine intentions towards study and its satisfaction that he was attempting to use the student visa program to circumvent the intentions of the migration program. Nonetheless, given the manner in which the hearing was conducted, and the exchange which occurred over this part of the evidence, the erroneous finding as to his evidence was significant. This is particularly the case given the Tribunal’s general finding of evasiveness on the part of the applicant:
    “… His answers at hearing on that issue were largely evasive. He referred to an original plan to assist his father in an automotive shop in Dubai however that purported plan changed such the applicant now claims that he will return to India and with his father to establish a security business. Despite asserting that there are many auto shops in India the tribunal is not satisfied the applicant in fact sought employment as an automotive mechanical (sic) in India. His answers at hearing, and his evidence generally, avoided answering the particular question of why, having studied for a number of years towards commencing in (sic) automotive business, he simply changed his mind and now wishes to commence a business in which he has no formal qualifications. Such a significant change in direction without appropriate explanation weight heavily towards considering the applicant not to be a genuine applicant for entry and stay temporarily in Australia as a student.”[42]
56. The evidence given at the hearing, and the manner in which it was conducted, can be considered in light of the erroneous finding as to the conversation with the uncle and the general, but very clear, finding on the part of the Tribunal, that the applicant had been evasive. I am not persuaded that the Tribunal acted in a way that demonstrated actual bias on its part. However, in my view, it is possible that a fair minded and reasonably well informed lay observer aware of the content of the Tribunal hearing, the manner in which it was conducted, and the ultimate findings made by the Tribunal, might reasonably apprehend that the Tribunal might have approached the evidence of the applicant in a way that was not impartial or with a closed mind.[43]This is particularly so for this reason. The applicant’s evidence about the conversation with his uncle can be clearly heard on the audio recording of the proceedings. It is, obviously enough, starkly apparent in the transcript. Faced with the applicant’s protestation that he had misunderstood his evidence, the Tribunal member cannot have checked either the audio or the transcript and instead relied on his erroneous notes and/or his false recollection. This must be the case not simply because the Tribunal repeated the error in its reasons, but also because the exchange between the applicant and the member was so significant that one would have expected the member to have addressed his misapprehension of the evidence had he discovered the error.
57. For the above reasons, I am satisfied that the Tribunal fell into jurisdictional error on the basis of apprehended bias.
58. However, in addition to the jurisdictional error I have just identified, there are other reasons outside of the grounds of the application which suggest the Tribunal fell into jurisdictional error. In my view, the error as to the applicant’s evidence also raises other questions of procedural fairness and a failure to exercise jurisdiction by conducting a review. The Tribunal was required to conduct a review of the decision.[44]It purported to do so. It was required to invite the applicant to appear before it to give evidence and present arguments relating to the decision under review.[45]It obviously did invite him to attend for that purpose. The requirements in ss.348 and 360 can only properly be complied with if the applicant is accorded procedural fairness. That necessarily requires the Tribunal to make a decision based on the evidence before it. If an applicant gives evidence, the Tribunal is required to make its decision either in favour of or adverse to an applicant’s case based on the evidence he actually gave. The invitation to give evidence would be meaningless otherwise. Section 360 of the Act is expressed in terms almost identical to 425. In considering the statutory obligation to issue an invitation pursuant to s.425, the Full Court of the Federal Court, citing Mazhar v Minister for Immigration and Multicultural Affairs[46], observed that “the invitation must not be a hollow shell or an empty gesture.”[47] The Court held that the statutory obligation upon the Tribunal was to provide a “real and meaningful” invitation.[48]This obligation exists even where the Tribunal was unaware of the circumstances that would render the proceedings unfair. In this case, the Tribunal was clearly unaware of the fact that it had misapprehended an important aspect of the applicant’s evidence. Nevertheless, the invitation was rendered an empty shell or hollow gesture by the failure to consider what the applicant actually said. For that reason, it did not comply with the obligation under s.360.
59. That observation is not inconsistent with the proposition that the Tribunal was not required to accept uncritically everything the applicant said. Nor, in my view, does it amount to reading the decision of the Tribunal with an eye keenly attuned to error. The applicant’s evidence about the conversation with his uncle was pivotal to the explanation that he had not simply enrolled in further courses as a response to the hearing invitation. In the absence of specific findings about matters on which the Tribunal concluded the applicant had been untruthful or evasive, it is difficult to assess how much weight or significance the Tribunal gave to the misapprehended evidence. It may still have rejected the applicant’s claim had it not made the error. In this case, it is, “impossible to know whether the Tribunal’s assessment of the [applicant’s] credibility would have been different”[49]had it not misapprehended his evidence. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another[50], Kirby J described the problem in this way:

“[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.”

60. The error I have identified cannot be dismissed as a matter of errant fact finding. For the reasons above, I am of the view that it has jurisdictional significance of the kind identified by Logan J inSZRHL v Minister for Immigration and Citizenship & Anor[51]:“The end result of that errant fact finding may yet be that the Tribunal has conducted its “core function” of review in a way that is unreasonable …”
61. In summary, the error made by the Tribunal gives rise to the possibility of apprehended bias. It occasioned procedural unfairness to the applicant in the way I have described. It cannot be said that the erroneous finding as to what he said in evidence could not have materially affected the outcome and the finding or assumption as to his evidence on the relevant point was unreasonable.
62. For the above reasons, I make the orders to be found at the beginning of these reasons.