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Where appellant disclosed a criminal conviction in a visa application but had failed to do so in an earlier visa application, was apprehended bias on the part of the AAT established?

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 (17 March 2022)

Intro:-

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).

Facts:-

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

The conviction(s)

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)”.

The 2016, 2017 and 2018 student visa applications

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).

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

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

The 2019 visa application

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.

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”.

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 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).

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

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.

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.

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.

The Tribunal

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

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.

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]).

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]).

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.

Issue:-

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

Consideration:-

The applicable principles

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.

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).

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.

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);

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).

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].

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

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).

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.

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).

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.

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.

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.

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).

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 [1923] EWHC KB 1; [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.

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.

1) The use of an interpreter

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: 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?

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.

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.

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.

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].

2) Appointment of Migration Agent

Second, the appellant relies on the following exchange, 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.

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).

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).

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

3) Tribunal's failure to explore whether the incorrect answer in the 2018 visa application was purposely false

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.

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.

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.

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”.

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...”

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”.

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.

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.

Conclusion:-

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.

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