Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The legislative scheme 4 The relevant provisions are ss 101, 107, 108 and 109 of the Migration Act. 5 Section 101 provides: 101 Visa applications to be correct A non‑citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided. 6 Section 109 provides: 109 Cancellation of visa if information incorrect (1) The Minister, after: (a) deciding under section 108 that there was non‑compliance by the holder of a visa; and (b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled. 7 The discretion to cancel a visa under s 109(1) is enlivened after a decision under s 108 that there has been non-compliance. Section 108 provides: 108 Decision about non‑compliance The Minister is to: (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and (b) decide whether there was non‑compliance by the visa holder in the way described in the notice. 8 Section 107(1) contains a requirement that a visa holder be notified of possible non-compliance and be given an opportunity to respond: 107 Notice of incorrect applications (1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice: (a) giving particulars of the possible non‑compliance; and (b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that: (i) if the holder disputes that there was non‑compliance: (A) shows that there was compliance; and (B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance - shows cause why the visa should not be cancelled; or (ii) if the holder accepts that there was non‑compliance: (A) give reasons for the non‑compliance; and (B) shows cause why the visa should not be cancelled; and (c) stating that the Minister will consider cancelling the visa: (i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response - when that notice is given; or (ii) if the holder gives the Minister a written response within that period - when the response is given; or (iii) otherwise - at the end of that period; and (d) setting out the effect of sections 108, 109, 111 and 112; and (e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and (f) requiring the holder: (i) to tell the Minister the address at which the holder is living; and (ii) if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non‑compliance by the holder - to tell the Minister the changed address. 9 The "particulars of non-compliance" in the Notice are important. In the context of what is obviously a procedural fairness provision, it is these particulars which put a visa holder on notice, with precision, about how the visa holder is alleged to have contravened s 101(b) (relevantly) by giving or providing "incorrect answers" in a visa application. It is the non-compliance particularised in the notice which then forms the basis for consideration of visa cancellation. The first of the two tasks assigned to the Minister or delegate - the task in s 108 - is to decide whether there was non-compliance "in the way described in the notice". 10 If, and only if, a decision is made that there was non-compliance "in the way described in the notice", then the discretionary power in s 109 arises. That this is a two-step process was confirmed by Griffiths and Abraham JJ in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 at [124]. Further, as the Minister submitted, there is Full Court authority that this first step under s 108(b) does not involve a jurisdictional fact whether there was non-compliance in the way described in the notice. Rather it is a matter about which the Minister or delegate must be satisfied, or must form an opinion: see SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; 134 FCR 43 at [17]. That opinion or state of satisfaction must be reasonably and rationally formed, and based on probative material: see SHJB at [22]. 11 Reference should also be made to reg 2.41 of the Migration Regulations 1994 (Cth) which set out the "prescribed circumstances" for the purpose of s 109(1)(c). These matters inform the exercise of the discretion in s 109, and as such are not directly relevant to the grounds of appeal. 2.41 Whether to cancel visa - incorrect information or bogus document (Act, s 109(1)(c)) For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (j) any breaches of the law since the non-compliance and the seriousness of those breaches; (k) any contribution made by the holder to the community. Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.

The factual narrative 12 The procedural and factual background to this proceeding are set out in the Tribunal's reasons at [1]-[23] and in the Federal Circuit Court's reasons at [2]-[4]. The appellant is a citizen of India who first entered Australia in 2008 on a student visa. The Notice of Intention to Cancel which is in issue in this proceeding reveals earlier visa applications and rejections but it was not contended by the Minister that any of that factual narrative was relevant to the Tribunal's decision or to the legal issues on the appeal. 13 The visa relevant to this proceeding was granted on 16 February 2016 under the "Regional Sponsored Migration Scheme". The scheme, set out in the Regulations, provides for a subclass of visas for skilled workers, who are nominated by an employer in regional Australia, to live and work in Australia permanently. The appellant's visa was granted as the result of an employer nomination, lodged by a business called Purple Allium Pty Ltd (trading as Mirrors Hair Studio) for the occupation of hairdresser. The nomination was made on 12 March 2015 and related to a business in Joondalup, Western Australia. The director of that business was the appellant's brother, Navdeep Singh. 14 At the time of the nomination application, the appellant was living and working in Australia as the holder of a Temporary Skilled (Subclass 457) visa. 15 On 16 March 2015, a few days after the nomination application by Purple Allium, the appellant applied for the visa. It is apparent from the evidence that consideration of both the nomination by Purple Allium and the applicant's visa application were progressed, and determined, together, and that information relevant to one may also have been relevant (and considered) in relation to the other. 16 The delegate's visa cancellation decision described what occurred as part of the assessment of Purple Allium's nomination as the employer sponsor: On 16 October 2015, departmental officers conducted a site visit of the visa holder's sponsoring employer, Purple Allium Pty Ltd's business premises. Upon arrival, the officers noted that the business was open but was unattended and there were no customers present. The officers then spoke to a staff at the business, who claimed that the visa holder was not a hairdresser and the visa holder was away on a holiday with his brother, the business owner, Navdeep Singh. The staff claimed that the visa holder had a support role within the business, where his duties involved cleaning the premises, making coffees, helping his brother with organising the pay, fetching goods from the shops on an ad-hoc basis and sometimes shampooing clients' hair but did not involve cutting hair. The staff confirmed that the visa holder worked Tuesdays to Fridays from 11:00 until 16:00 or 17:00 - which would equate to between 20 and 24 hours per week; he was last at the salon on Friday 9 October 2015; he was expected to return on Tuesday 20 October 2015; and he has worked for the salon since April 2014 but never as a hairdresser. … On 18 January 2016, the delegate sent Purple Allium Pty Ltd a procedural fairness letter regarding the site visit findings. On 13 February 2016, Purple Allium Pty Ltd submitted the following information in response to the procedural fairness letter: • An agreement for sale of business between Purple Allum Pty Ltd and KPBS and K Pty Ltd signed by Navdeep Singh on 4 March 2014. • A business card for Mirrors Hair Mobile Service with the visa holder's name 'Narpal'. • A letter to WA Sponsoring Monitoring Unit from migration agent, Sandra BOLTON dated 9 February 2016, who stated that Navdeep Singh has two businesses trading as Mirrors Hair Studio Joondalup and Mirrors Mobile Hair Service. The migration agent claimed that the visa holder proposed to establish a mobile service to visit people at home to increase business sales for Purple Allium Pty Ltd; this mobile unit operates under Purple Allium Pty Ltd; and the visa holder is the hairdresser who provides the service in addition to the time spent at the Joondalup salon; and the staff interviewed by departmental officers on 16 October 2015 was not aware of this mobile salon service. (Emphasis added.) 17 It is important to note therefore that the information set out in this extract is information given to the Department, and the delegate, as the officer responsible for deciding whether to approve the nomination and grant the visa in the first place. 18 Based on this information, the nomination application by Purple Allium Pty Ltd was approved on 16 February 2016. As will become apparent, in substance the same information was supplied to the delegate, and then the Tribunal, in relation to the cancellation decision, and by the same migration agent. One factual matter to note, recorded in the Notice of Intention to Cancel, is that the employer nomination and its approval were described as listing the appellant "as the nominee for the occupation of Hairdresser (ANZSCO Code 391111)". Why the reference to the ANZSCO Code and position is relevant is a matter to which I return below. 19 The delegate's cancellation decision also describes what the appellant put in his visa application form, and what other material was provided in relation to his visa application. Again, for the purposes of my reasoning below, it is important to note that this information was provided before the visa was granted, and was considered a proper basis for the visa to be granted. Give details of employment undertaken in the last 10 years. • Position: Hairdresser • Employer name: Mirrors Hair Studio • Country: Australia • Date from: 15 April 2014 • Date to: 15 March 2015 • Description of duties: Attached resume • Is this employment related to the nominated occupation? Yes. On 5 October 2015, the visa holder submitted the following documents in support of his Regional Sponsored Migration Scheme (subclass 187) visa application: • Updated Form 80, in which the visa holder indicated he commenced working at Mirrors Hair Studio in Joondalup as a hairdresser in April 2014 and his duties included cutting, trimming, shaping hair; scheduling client appointments; and bleaching, dying or tinting hair. The visa holder also indicated that he worked as a taxi driver from December 2008 to October 2011, May 2012 to January 2013 and March 2013 to March 2014. On 30 November 2015, the visa holder provided the following supporting documents: • A statutory declaration dated 24 November 2015, in which the visa holder declared that he has worked as a full-time hairdresser for Purple Allium Pty Ltd since his subclass 457 visa was granted on 27 June 2014; the hours of his employment have been divided between Mirrors Hair Studio in Joondalup and the Mirrors Hair Mobile Service; and he does some of the management duties with both businesses such as banking and processing staff pay. • A statutory declaration by Navdeep Singh dated 24 November 2015, in which Navdeep declared that he is the owner of Purple Allium Pty Ltd; he purchased the business which began trading on 8 April 2014; he employed the visa holder, his brother as a qualified hairdresser; he divided the hours of the visa holder's employment between Mirrors Hair Studio in Joondalup and the Mirrors Hair Mobile Service; and he instructed the visa holder to pay staff and do the banking. • The visa holder's employment contract with Purple Allium Pty Ltd dated 5 March 2015. • A business card for Mirrors Hair Mobile Service with the visa holder's name 'Narpal'. • A letter to WA Sponsoring Monitoring Unit from migration agent, Sandra Bolton dated 23 November 2015, who stated that the visa holder proposed to establish a mobile service to visit people at home to increase business sales for Purple Allium Pty Ltd; the visa holder provided this service as a hairdresser; this business arrangement was not disclosed to the two employees at Joondalup salon and they were unaware that the visa holder provided this service. (Emphasis added.) 20 The appellant's Regional Sponsored Migration Scheme (subclass 187) visa was granted on 16 February 2016 on the basis of this material. 21 On 15 August 2017, a second site visit to the Joondalup salon was conducted by a departmental officer, the first having occurred in October 2015 as part of the process of deciding whether to approve the sponsor nomination and grant the visa. The following description is again taken from the delegate's cancellation decision, which was accepted by the Tribunal. There is no evidence as to why this second site visit occurred (since the visa had been granted) but I infer it may have been part of some kind of compliance program. In the delegate's cancellation decision the reference to the second site visit appears under the heading "Integrity checks". 22 During this 2017 visit, the departmental officer was told by an employee present at the salon that the business had changed hands, and that the visa holder used to work for the owner but not as a hairdresser at the store. The records then states: The visa holder apparently had private clients that he visited but the staff could not confirm this. 23 The departmental officer then called the appellant's brother, Mr Navdeep Singh, who confirmed that the hairdressing business had been sold, and said that the appellant had spent some time overseas but was at the time doing "mobile beauty work with his private clients". The record ends with the following statement: The officer had serious concerns that the sponsor Navdeep Singh may be facilitating his brother's permanent visa through false or misleading employment claims and concluded the visa holder's position as a hairdresser at Mirrors Hair Studio to be a non-genuine position. 24 I infer this was the start of the process which ultimately led to the visa cancellation. Again, this is despite information about the appellant's work at the salon, and his work with the mobile hair service having been provided for the purposes of both the employer nomination approval and grant of the visa. 25 On 5 September 2019, pursuant to s 107 of the Migration Act, the Department issued the appellant a Notice of Intention to Consider Cancellation of his visa. The notice described the alleged non-compliance as being with s 101(b). It also stated: By operation of section 99 of the Migration Act 1958, any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise. 26 The terms of the notice are important: On page 6 of the application form, which asked for your employment history, you answered as follows: Has the applicant been employed in the last 10 years? Yes Give details of employment undertaken in the last 10 years. • Position: Hairdresser • Employer name: Mirrors Hair Studio • Country: Australia • Date from: 15 April 2014 • Date to: 15 March 2015 • Description of duties: Attached resume • Is this employment related to the nominated occupation? Yes. I consider this answer to be incorrect as integrity checks conducted by the Department on 16 October 2015 and 15 August 2017 confirmed that you did not work as a hairdresser nor perform duties of a hairdresser for your sponsor Purple Allium Pty Ltd trading as Mirrors Hair Studio. Australian Business Register records indicate that you have been operating your own business as an individual/sole trader under the name of Bhatti, Narpal Singh (ABN: 76 702 231 303) since 7 April 2009. As such, it appears you did not work as a hairdresser at Purple Allium Pty Ltd from 15 April 2014 to 15 March 2015. (Emphasis added.) 27 Therefore the "incorrect answers" for the purposes of s 101(b) are, at the widest, the ones I have highlighted in bold. 28 Again, I note that reliance on the 16 October 2015 site visit in this context would seem irrational, since this visit occurred before the approval of the employer nomination and the grant of the visa, and it can inferred that both the nomination and the visa were approved and granted in full knowledge of the site visit report, because of the responses given by the applicant and his brother, and their migration agent, which I have extracted above. 29 On 15 October 2019, the Department notified the appellant that his visa had been cancelled under s 109 of the Act, on the basis that the appellant did not comply with subs 101(b) of the Migration Act. 30 On 30 March 2020, the Tribunal affirmed the cancellation decision. 31 On 24 April 2020, the appellant filed an application for review of the Tribunal's decision in the Federal Circuit Court. On 14 January 2021, the Federal Circuit Court dismissed the application for review.

The Tribunal's decision 32 After setting out the background to the proceeding, the Tribunal's reasons proceeded to summarise certain aspects of the oral hearing before the Tribunal, during which the appellant gave evidence, as did his brother and sister in law. The hearing record in evidence, and the Tribunal's reasons (at [19]) both confirm that the appellant's migration agent appeared via phone at the Tribunal hearing. However, the Tribunal said to the appellant at the start of the hearing that his agent was not entitled to present the argument to the tribunal. 33 Therefore, it is not surprising that nothing is heard from the agent during the conduct of the hearing. 34 In its reasons, the Tribunal described having put several matters to the appellant, which it described as "inconsistencies": (a) In his visa application, the appellant had stated that he worked as a hairdresser for Mirrors Hair Studio from 15 April 2014 to 15 March 2015. (b) In his oral evidence, the appellant had told the Tribunal he worked at Mirrors Hair Studio from July 2014 to October 2016. (c) In his written submissions the appellant had conceded he did not work as a hairdresser at Mirrors Hair Salon, and performed hairdressing work only for the mobile hairdressing service. 35 The Tribunal recorded that the appellant responded as follows: The applicant stated that, from July 2014 until October 2016, he also worked as a mobile hairdresser for Mirrors Mobile Hair Service. He explained that he would usually work between 20-25 hours during the weekdays at the hairdressing salon at Joondalup and on weekends he would work as a mobile hairdresser. This arrangement continued until October 2016 when the business was sold. … The applicant then stated that he did cut hair for 'walk-in customers' on 'very rare' occasions. The Tribunal enquired as to how many, out of 25 hours that he worked at the salon, he would spend cutting hair. The applicant stated that he would cut hair 2-3 hours per week. He then stated that he did not spend any time from July 2014 to October 2016 at the Joondalup salon as a hairdresser. He gave evidence that he would help staff and occasionally shampoo hair. 36 At [29], the Tribunal described asking the appellant whether his opinion was that the staff who were interviewed by the departmental officers on the site visits were not telling the truth when they advised that the appellant did not work at the salon as a hairdresser. The appellant responded that the staff at the salon did not know about his work for walk-in customers. 37 From [45], the Tribunal summarised the oral evidence of the appellant's brother, Mr Navdeep Singh. The Tribunal recorded the brother's evidence as being that the appellant worked approximately 70% of the time as a hairdresser and 30% of the time undertaking other duties, and that the appellant had worked for the mobile hairdressing service from July 2014. 38 At [65]-[67], the Tribunal noted the relevant provisions of the Migration Act and explained their operation. From [68], it asked itself the first of the two questions arising in its review - namely, whether there was non-compliance as described in the s 107 notice issued to the appellant. 39 From [69]-[77], the Tribunal summarised the evidence before it. It also referred to the "integrity check" on 16 October 2015, without apparently realising this was before the grant of the visa and before the approval of the employer nomination. The tribunal described these integrity checks as having confirmed that the visa holder did not work as a hairdresser for his sponsor Purple Allium Pty Ltd trading as Mirrors Hair Studio. 40 That is an incomplete summary of what those checks could be said to have confirmed, as the extracts above demonstrate. 41 At [70], the Tribunal referred to the written submissions filed on behalf of the appellant. These were submissions in fact intended for the delegate, but as counsel for the Minister explained during the hearing before this Court, they never reached the delegate before the delegate's cancellation decision. Therefore, they were submitted to the Tribunal. The Tribunal found: In his written submissions of 17 July 2019, the applicant stated that he did not intentionally provide incorrect answers pertaining to his employment history and nominated position. He claims that he worked as a hairdresser for Mirrors Mobile Hair Service but not for the Joondalup hairdressing salon where he stood in more for his brother and carried out the day to day management and other tasks to ensure the smooth operation of the salon. Finally, the applicant conceded in his written submissions that his actual hairdressing duties in the Joondalup salon were limited and that he carried out other duties within the business. 42 This is in substance the same recitation of the situation as that put to the delegates prior to the employer nomination approval and the grant of the visa. 43 At [71], the Tribunal refers again to the 2015 site visit, again without apparently realising it occurred before the grant of the visa and the approval of the employer nomination. At [72], the Tribunal in substance observes that whether or not incorrect information was supplied intentionally or not is not relevant to the decision on non-compliance. That is undoubtedly correct, see: Chou at [34] and s 100 and s 111 of the Migration Act. However, whether the incorrect information was supplied intentionally or unintentionally was clearly relevant to the exercise of the cancellation discretion. Ultimately, it would appear the Tribunal did not believe the appellant on this matter, as it found (at [90]) that he made a "deliberate decision" not to advise the department that "he is not working as a hairdresser at Mirrors Hair Studio at Joondalup". Again, this finding is at odds with the evidence about what the appellant and his migration told the department prior to the grant of the visa. 44 At [74], the Tribunal describes the appellant as "changing" his evidence by saying that on weekends from July 2014 to October 2016, he also worked as a mobile hairdresser for Mirrors Mobile Hair Service. He claims that he usually worked between 20-25 hours during the weekdays at the hairdressing salon at Joondalup. 45 The evidence to which I have referred makes it clear this was not a "change" in the appellant's evidence. He had disclosed this, consistently, since prior to the grant of the visa, and indeed as part of the material upon which the delegate was invited to rely. 46 At [75]-[76] the Tribunal points to what is considered an inconsistency in the appellant's evidence during the hearing. On the one hand, it found the appellant claimed to have "cut hair" at the Joondalup salon 2-3 hours a week. On the other, in his written submissions and at other times in his oral evidence, he claimed he did not spend any time at the Joondalup salon as a hairdresser, but would "help staff and occasionally shampoo hair". 47 Before addressing this finding, it should be observed that the Tribunal hearing occurred with the assistance of an interpreter, interpreting for the appellant. The interpreter was on a mobile phone. She said, at the start of the hearing I do not have a landline, member. I'm sorry but I'm sitting in a quiet place trying my best-- I will try my best again. 48 It is also appropriate to note here that there was a transcript prepared of the Tribunal hearing, which was adduced before the Federal Circuit Court, and was also before the Court on the appeal. Both parties agreed there were some inaccuracies in transcription, but none of them substantively affect the matters which need to be considered as arising from the transcript of the Tribunal hearing. 49 As to the "inconsistencies" the Tribunal identified, the transcript suggests otherwise. The Tribunal, it must be said, was somewhat impatient with the appellant, and did not appear to let him finish his answers. This is the first relevant extract (noting the term "Judge" is incorrectly used to describe the Tribunal member): Mr. Bhatti: When he bought the business from the KPB 10 buyers, that time it was only two employees already there, so my brother, he rent there. Judge: Sorry. If you could just answer my questions. I don't want full stories. Your advisor already provided submissions of that. [unintelligible 00:23:53] is an opportunity for me to tell me what happened. This is just you and me talking about it. If you can answer my question, this is my question, which is, what was your job at the Mirrors Hair Studio? Did you work there as a hairdresser or you were running the business? Mr. Bhatti: No, as a hairdresser. Judge: You worked there as a hairdresser? Mr. Bhatti: As a hairdresser. Judge: You were cutting hair? Mr. Bhatti: Yes, please. Judge: How long did you work there as a hairdresser? Mr. Bhatti: There was two clients. They had their own-- Judge: How long did you work there as a hairdresser? Mr. Bhatti: Till July 2014. Judge: Till July 2014. Mr. Bhatti: Yes, please. Judge: What happened then? Mr. Bhatti: Then, because we started [unintelligible 00:24:47] the new [unintelligible 00:24:49] was an online campaign advertisement where you get more customers. Judge: What did you do after July 2014? Mr. Bhatti: That's what I'm trying to-- I was helping that time because salon got busy with all the customer with 200 inquiries what's coming. I was helping with the other staff members. Judge: Helping how? Mr. Bhatti: Because they had their own clientele as well, helping washing their hair. Judge: Did you work as a hairdresser? Mr. Bhatti: Yes, please. Judge: Cutting hair? Mr. Bhatti: Cutting hairs. Judge: You continue to work as a hairdresser from July 2014. Is that what you're telling me? Mr. Bhatti: Yes. Not at Mirrors Hair Studio then he established. Judge: Where did you work as a hairdresser? Mr. Bhatti: As a mobile hair service in the Mirrors Hair Studio. 20 Judge: You worked as a mobile hair service? Mr. Bhatti: Yes, please. Judge: You worked as a hairdresser or mobile hair at a small Mirror Hair mobile service. Mr. Bhatti: Yes, please. Judge: Okay. Did you work full-time for Mirror Hair mobile service? Mr. Bhatti: Yes, in retail as well looking in Mirrors Hair Studio helping with the-- Judge: You worked full-time? Mr. Bhatti: Yes, please. 50 And then, after a lengthy exchange about what counsel for the appellant described as the "distraction" of the registration of the business name for the brother's mobile hairdressing service, there was this series of questions and answers: Judge: Tell me, how did you work outside the business? Mr. Bhatti: I did the mobile hair service which was I was when I started work at Joondalup, so I was already getting calls for inquiries from my [unintelligible 00:33:22] "Can you give an interview?" My friend was there. It was because all that Indian clients was hard for them to come to Joondalup, which was a bit far. It was his proposal of not if to give us services in the mobile services. Judge: Are you telling me that as of 14th of July 2014, this time where he has for mobile hair services? Mr. Bhatti: After July, yes, please. Judge: From July 2014, until when did you work for this Mirrors Hair Mobile Service? Mr. Bhatti: Until in 2016, before we sold the business in October. Judge: Until October 2016? Mr. Bhatti: Yes, please. Judge: Tell me, how is that working? For two years more than two years, you work as mobile hairdresser, is that correct? Mr. Bhatti: Yes, please. On weekends and weekdays. Judge: On weekdays and how does that work in practice? Mr. Bhatti: On weekdays, I was working at Mirrors Hair Studio at Joondalup. Judge: Sorry, on the weekends? Mr. Bhatti: Weekdays? Judge: Weekdays, you were working for the Mirrors Hair Studio? Mr. Bhatti: Mirrors Hair Studio. Judge: Only? Mr. Bhatti: From Monday to Friday. Judge: Right, so Monday, Friday. Work for Mirrors Hair Studio. Did you continue to work Monday, Friday for Mirrors Hair Studio until October 2016? Mr. Bhatti: Almost. Yes, please. Judge: You continued to work there at Monday to Friday until the business was sold? Mr. Bhatti: Yes, please. Judge: On weekends, you worked as a mobile hairdresser? Mr. Bhatti: Yes, please. Judge: This work as a hairdresser for Mirrors Hair mobile service, that was in addition to full-time work that you had when it was registered? Mr. Bhatti: That wasn't. That was from Monday to Friday, I was doing almost 24 hours in the Mirrors Hair Studio that rest of job was during weekends. Judge: What you're telling me is that you worked part-time from Monday to Friday? Mr. Bhatti: Yes, please, and the rest of job on weekends. 51 There is then quite a bizarre exchange with the Tribunal member, who puts the "dichotomy" to the appellant which was to become the subject of submissions in the Federal Circuit Court, about whether the appellant was lying or the staff member who spoke to the departmental officer at the site visit in 2015 was lying, and why the staff member did not mention anything about "mobile services". Again, the fact this had been explained prior to the grant of the visa seems to have been completely overlooked, or misunderstood, by the Tribunal. At the Tribunal hearing, the appellant gives the same explanation he has previously given - that the staff member did not know about the mobile services. 52 There are aspects of quite harassing questions from the Tribunal in this exchange as well. For example, when the appellant attempts to explain why the staff members at the salon did not know about what he did about "walk ins" or about the mobile hairdressing business: Mr. Bhatti: Of my then-because Noreen and Debbie, they had their own commitments to leave early. The rest when walk-in ones comes, I just-- Judge: Did you understand my question? When the department officers came there, the staff that were working with you, they described your role as bringing coffees, cleaning, helping your brother run the business, fetching stuff like that, but not cutting hair. So were they lying to the department of immigration, or no?: 53 It does appear from the transcript that the Tribunal, unreasonably in my respectful opinion, had taken a set against the appellant, perhaps from the start of the hearing. The "black and white" kind of approach the Tribunal member took, his blunt questioning, does tend to demonstrate an inability to actually listen to what the appellant was saying, because of a preconceived position about the appellant. This exchange is a further example: Judge: What they saying, people who worked with you, they told the department of immigration that you didn't cut hair there. Mr. Bhatti: I don't know why she said that. Judge: They're not telling the truth and you are telling the truth? Mr. Bhatti: Yes. This is the truth for the walk-in ones. But she was in the absence of both staff members. Judge: Mr. Patti [Bhatti], your character as a key witness is very important, your credibility is very important. It's very important that you tell me the truth. If I find you not to be a credible witness, I may not believe anything that you say. Your advisor provided submissions to me, written submissions. Have you read those submissions? 54 The Tribunal then suggested what had been in the written submissions from the appellant's lawyer was inconsistent with the appellant's account. However, it does so again in inflammatory and emotive language: Judge: This is your lawyer provided submissions. You instructed her to write back to tribunal [unintelligible 00:44:04] In those submissions it was acknowledged that you didn't work as a hairdresser for [unintelligible 00:44:09] salon. You said, "I didn't work as a hairdresser." Now you're telling me that you did. which one is true? Mr. Bhatti: This one is true Judge: So this is what was provided to me was false and misleading? Mr. Bhatti: No, this is not misleading, actually. It was only for the walk-ins. They were very rare only walk-in comes. Judge: You did very, very rare walk-ins. So how much of your time at [unintelligible 30 00:44:43] salon would you work as a hairdresser? Mr. Bhatti: Only when the staff left. Judge: what is the percentage? If you spent 25 hours there working, how many hours did you spend cutting hair? Mr. Bhatti: Four hours each day was did, from Monday to Friday. Judge: How many hours per day would you spend cutting hair? Mr. Bhatti: Not every day. It was-- Judge: On average, how many hours per working week would you cut hair? Mr. Bhatti: Maybe two-three hours. Judge: You would cut hair for or two-three hours per week, right? Mr. Bhatti: Per week, from April to July. Judge: Your job was a full-time hairdressing, you were nominated to work as a full time hair dress [crosstalk] not as a manager. Mr. Bhatti: I was not full time in April 2014. I was only casual or part-time was doing only 20 hours. Judge: You started working on full-time basis, according to what you told me July 2014. From July 2014, in that hairdressing salon in [unintelligible 00:45:59] how many hours did you spend cutting hair? Mr. Bhatti: I did not spend any hours at [unintelligible 00:46:05] Salon from July 2014. Judge: So you did not spend any time at that salon? Mr. Bhatti: For the hair cut. Judge: What did you spend time for? Mr. Bhatti: I was, as it is mentioned, Napal, he used to help Debbie and Maryl for their clients to shampoo their clients hair, or when it get busy with their appointments. Judge: From July, 2014 to October 2016, you did not spend any time at the hairdressing salon as a hairdresser? Mr. Bhatti: As a hairdresser, that's true. 55 It is obvious when read in context that the last answer related to cutting hair, that having been what the Tribunal was pressing the appellant about. 56 It is also apparent that contrary to the Tribunal's reasons, the appellant was describing a period where he cut hair a few hours a week at the salon from April to July 2014, prior to the period in the visa application. 57 Thus, the Tribunal's finding was not based on the evidence as given by the appellant. The Tribunal was inaccurate in the way it referred to the appellant's evidence in its reasons. In fact, the appellant remained remarkably consistent in the face of quite hostile and confusing questioning from the Tribunal, and, the transcript reveals, some considerable difficulties with the way the interpreter was interpreting what he said. Some of the interpretation barely makes sense. I do not say that critically of the interpreter - however the circumstances in which the interpretation was occurring were conducive to mistakes and misunderstandings. 58 At [76] of its reasons, the Tribunal made the following finding: The Tribunal noted that in his oral evidence the applicant is now stating that he did work as a hairdresser at Joondalup hairdressing salon and pointed out the inconsistency in his written submissions and oral evidence. He then stated that he did not spend any time from July 2014 to October 2016 at the Joondalup salon as a hairdresser. He gave evidence that he would help staff and occasionally shampoo hair. 59 As counsel for the appellant submitted, this finding completely omits and ignores the appellant's consistent evidence about the work he performed in the mobile hairdressing business. It also ignores his evidence about the "walk ins" to the salon. However, this approach by the Tribunal is consistent with its apparent determination to make adverse findings against the appellant. 60 At [77] is the finding about the matter the appellant's counsel described as a "distraction" for the Tribunal, namely; when the business name for the mobile hair service was registered: The Tribunal noted that, according to the primary decision record, the business name Mirrors Mobile Hair Service was only registered on 10 February 2016 and was not, prior to this date owned by Purple Allium Pty Ltd. The applicant stated that whatever income he was making working as a mobile hairdresser went into Purple Allium Pty Ltd's account. He added that his brother was not aware that he needed to register this business name. 61 It should have been patently clear to any Tribunal acting rationally and reasonably, that prior to the grant of the visa, from the information provided by the appellant to the department, the appellant's employer was Purple Allium Pty Ltd, and that corporation, of which his brother was a director, operated two different businesses related to hairdressing, under two different business names: see the extracts at [17] and [20] above. Registration of those names was, as the appellant's counsel submitted, a complete distraction, and irrelevant. The business card for the mobile hairdressing service, with the appellant's name on it, was submitted to the department prior to the grant of the visa and prior to the approval of the sponsor nomination. The Tribunal did not even refer to this card. 62 The Tribunal then reaches its conclusion at [78] on non-compliance: Based on the evidence before it, including the applicant's oral evidence, the Tribunal finds that the applicant did not work as a hairdresser from 15 April 2014 to 15 March 2015 at Mirrors Hair Studio as stated in the visa application form. Accordingly, the Tribunal is satisfied that the applicant has not complied with s.101(1)(b) of the Act as he provided incorrect answers in the visa application form. 63 As I explain below, no Tribunal acting rationally and reasonably could have reached that conclusion on the material to which the Tribunal referred, but also taking into account the material to which it did not refer, but should have. 64 There are other matters mentioned by the Tribunal both in the hearing and in its reasons which indicate it was determined to find against the appellant. One such example was the Tribunal's conviction that there were other grounds to cancel the appellant's visa. During the hearing: Judge: It's also a state [unintelligible 00:49:24] there is a requirement that you have to [inaudible 00:49:27] for a business that nominated you for permanent visa. [inaudible 00:49:34] That's another possible realm as to why it's written, but we didn't cancel your visa under this provision, they could have canceled your visa under section 137-Q2, which requires that two years of employment here, you understand? 65 See also [100] of the Tribunal's reasons, which appears under the heading "breaches of the law", in the discretionary factors section of the Tribunal's reasons. The Tribunal has already made up its mind there was another reason for cancelling the appellant's visa and describes it as a "breach of the law". This issue was not before it for decision. 66 The Tribunal went on (from [80]) to consider the factors that might weigh in the exercise of discretion under s 109(1). This aspect of the Tribunal's reasoning is not impugned on the appeal, however there are parts which are relevant to the proposed grounds of appeal and I refer only to those parts. 67 At [83], referring to the matters set out in reg 2.41 of the Regulations, the Tribunal purports to consider what it calls "the correct information", being the circumstance prescribed in reg 2.41(a), as the Regulations stood at the time of the Tribunal's decision. This factor looks to what information should have been provided or given as part of the visa application. The Tribunal's description at [83] is: The correct information which the applicant was required to provide to the Department was that he did not work as a hairdresser at Mirrors Hair Studio from 15 April 2014 to 15 March 2015. That the applicant did not provide this information to the Department does not provide any support for not cancelling the visa 68 That finding by the Tribunal is obviously factually incorrect, and reinforces why it is that its entire approach to whether there was non-compliance with s 101(b) was misconceived and irrational. The "correct information" is precisely what the appellant through his migration agent, and his sponsoring employer had provided to the department prior to the grant of the visa and prior to the approval of the employer nomination. That is the information set out in [17] and [20] above. It is the information upon which the nomination was approved and the visa was granted. Therefore, the question implicitly posed by this factor in reg 2.41(a) - would the visa have been granted if the correct information had been supplied - could only have been answered in the affirmative, because that is, in fact, what occurred. 69 Some officer within the Department (whether this was the delegate or some unidentified officer within the Department is not apparent) had some doubts after the October 2015 site visit, those doubts were put to the nominating employer and to the appellant, both of whom responded in detail, and then the nomination was approved and the visa was granted. What occurred subsequently, at the 2017 site visit, added nothing to the factual situation after responses following the October 2015 site visit. In other words, the delegates who approved the nomination and granted the visa must have been satisfied the answers given in the visa application were correct, not incorrect. 70 Then at [85], the Tribunal refers to the factor in reg 2.41(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document 71 It found: The grant of the visa was based on the claim that the applicant worked from 15 April 2014 to 15 March 2015 as a hairdresser at Mirrors Hair Studio at Joondalup. This business was owned and operated by Purple Allium Pty Ltd. The applicant's brother was the owner and director of the nominating business. The Tribunal is satisfied that the decision to grant the visa to the applicant was based partially on incorrect information related to the applicant's work experience. 72 As I have endeavoured to demonstrate at length, the visa was in fact granted in full knowledge that the appellant was working in two businesses run through Purple Allium Pty Ltd. There was a complete disclosure of what he was doing in each business. The Tribunal's ultimate finding is without a basis in the evidence, but is derived from the perpetuation of the Tribunal's overlooking the evidence about the mobile hairdressing service and other information volunteered prior to the grant of the visa, and from a mistaken view of the appellant's own evidence. 73 Reference should be made to three other paragraphs in this section of the Tribunal's reasons. The first is [86], which in my opinion demonstrates the set the Tribunal had against the appellant. The applicant is a tertiary educated person from India, where he completed a Bachelor of Arts degree. He is a practising Sikh and follows the commands of his faith, one of which is that he is not allowed to cut any person's hair. In his evidence he claims that he started following this rule only after he was 'baptised Indian style' in March 2018. He provided no documentary evidence in support of this claim. The applicant conceded in his evidence that, during the claimed period of employment at Mirrors Hair Studio at Joondalup, he wore a turban and knew that as a Sikh he was not allowed to cut hair but did not follow this rule. 74 A number of matters can be noted about this finding. First, the Tribunal mentions the irrelevant Arts degree held by the appellant, but not his qualifications in hairdressing - both in hairdressing and in salon management. Those qualifications were fundamentally material to the question whether the appellant had provided incorrect information in his visa application. Any Tribunal acting rationally and reasonably would have had regard to those, and would not have focussed on a prior Arts degree. Those qualifications also make it clear to any reasonable person that working as a hairdresser involves more than cutting hair. 75 Next, the Tribunal's adverse finding about the appellant being an adherent to the Sikh religion, and its relationship to the exercise of the Tribunal's discretion is not only irrational, and not based on any probative evidence, but it is also insulting. This was the evidence given by the appellant and the questions asked by the Tribunal. It came about when the Tribunal asked the appellant, again somewhat bluntly, why he had changed his career from hairdressing to driving trucks: Interpreter: [Indian language] In 2018 I was baptized Indian style, he said. Mr. Bhatti: [Indian language] Interpreter: Sure. According to that I'm not allowed to either cut my hair or cut somebody else's hair. Judge: Were you Sikh, belonging to the same religion in 2014? You [were] wearing turban in 2014, were you? Mr. Bhatti: That time I was not baptized. I used to put all the hair on the back here, while I was doing all the services. Judge: Did you know that Sikhs are not allowed to cut hair? Did you know that? Mr. Bhatti: Yes, please. Judge: You knew that Sikhs are not allowed to cut hair, but never the less you did that. Mr. Bhatti: Because I never followed that. Judge: You never followed that? Why did you wear a turban? Mr. Bhatti: Turban [Indian language] Interpreter: There're lots of people who do wear a turban, but they haven't been baptized, so they can do anything. They can also drink and eat meat. Judge: When were you baptized? Mr. Bhatti: In 2018. Judge: When? Mr. Bhatti: March 2018. Judge: You have any document that was issued to you on that occasion? Mr. Bhatti: No. [Indian language]. Interpreter: They don't issue any documents for this occasion. 76 The appellant provides what would appear to be a logical explanation for how he was able to cut hair as a Sikh. Of course, it was for the Tribunal as the merits decision-maker to decide whether or not it accepted that explanation. If it decided not to do so, it was required to explain why it did not. The Tribunal's only reasoning as to why it appears not to have believed the appellant was the absence of documentation. Indeed, the Tribunal did not put to the applicant any other basis on which his explanation might be illogical or untrue. 77 The Tribunal does not provide any probative basis for the adverse inference it draws from the failure to supply "documentation". One can only speculate about what the Tribunal had in mind - a baptism "certificate"? The Tribunal disclosed no basis on which it could rationally and reasonably formed the view that such a document was routinely given to adherents of the Sikh religion who were baptised. It referred to no country information. How this factor came to be one reflecting adversely on the appellant is known only to the Tribunal and not disclosed in its reasons. Without any disclosed basis for the absence of "documentation" about Sikh baptism suggesting untruthfulness, the Tribunal's reasoning was wholly irrational. 78 Finally there is the Tribunal's finding at [89]-[90] of its reasons. Mr Navdeep Singh is a taxi driver and showed no interest in running a hairdressing salon. The Tribunal is of the view that this visa should not have been granted to the applicant in the first place as it is evident that the primary reason for purchasing the hairdressing salon by Mr Singh was to secure the immigration outcome for his brother. The Tribunal finds that the applicant made a deliberate decision not to advise the Department that he is not working as a hairdresser at Mirrors Hair Studio at Joondalup and his failure to advise the Department does not support exercising the discretion not to cancel his visa. 79 These passages are revealing. They demonstrate, as with the matter about the two year period, that the Tribunal had a number of other opinions about the appellant and his brother, which it never put to the appellant, but which plainly influenced its decision making. Putting the absence of any procedural fairness to one side, those other matters were not only extraneous but also irrational. There was simply no basis for the Tribunal to find the purchase of the hairdressing salon was a ruse. It is irrational to reason that a person who works in one industry (taxi driving) might not be interested in establishing other businesses (hairdressing) as a way to increase assets and revenue. Investment by those who run certain businesses in Australia in other, quite distinct businesses, is commonplace. Further, the second passage also reveals a clear basis to apprehend the Tribunal was not bringing an impartial mind to its task. The reasoning is wholly irrational, given the true situation, which was that the appellant, and his brother through his brother's company, voluntarily disclosed that the appellant was performing different tasks in the Joondalup salon and was working as hairdresser in the mobile service, and did so prior to the nomination approval and prior to the grant of the visa. The Tribunal's statements are nonsensical, but reveal the prejudice it harboured towards the appellant, and his brother. 80 I have set out my findings in detail as I have worked through the Tribunal's reasons because it is necessary to explain how misconceived and irrational almost all aspects of the Tribunal's reasoning are. Since I am satisfied of two of the errors relied upon by the appellant, given the remainder of my findings about the overall illogicality and irrationality of the Tribunal's reasoning process on both aspects of its review task, and the apparently closed mind its reasons disclose, I am firmly persuaded the only appropriate order is to set aside the Tribunal decision and remit it to be determined according to law by a different decision-maker. The errors which have been established clearly deprived the appellant of the possibility of a different outcome on the review.

The Federal Circuit Court's decision 81 The appellant identified two grounds of review in the Federal Circuit Court, which differ somewhat from the grounds advanced on appeal. They were: 1. The decision of the second respondent is affected by a reasonable apprehension of bias. Particulars (a) The applicant's key argument was that the salon staff were not in a position to know about the applicant's work for the mobile business, and therefore, their evidence to the Departmental officer - although not challenged - was not probative. A key issue in the review, then, was whether the applicant's narrative should be accepted, despite the evidence of the salon staff. (b) The second respondent dealt with this issue in the hearing upon first having created an analytical paradigm for itself, admitting only of binary options - either the salon staff were "lying" or the applicant was "lying". This was an improper "narrowing" of the issue. It disabled the second respondent from dealing with the argument being put, which was that neither the applicant nor the salon staff were lying, all were truthful, but there was an information deficit that meant the evidence of the salon staff was not the end of the matter. 2. The second respondent failed to consider government policy regarding the best interests of children being treated as a primary consideration. Particulars (a) See the applicant's written submissions. 82 Only the first of these grounds is raised on appeal. As I explained above, there is a substantive basis for that contention in the reasoning of the Tribunal. 83 Relevantly to the Minister's submissions responding to the application for leave to raise new grounds of appeal in this Court, at [40]-[41] the Federal Circuit Court stated: It is also worth recording that the applicant's counsel in this court accepted that the grounds for cancellation of the applicant's visa were made out, because the applicant conceded in his adviser's submission to the Tribunal that the applicant had not worked full-time as a hairdresser in the nominated business, being the Mirrors Hair Studio. The applicant's counsel told the court that the sole issue for the Tribunal was whether to exercise its discretion in favour of not cancelling the visa. Although the applicant's counsel told the court that was the position, the concession was not made clear to the Tribunal in the applicant's oral evidence or by his agent who was present at the Tribunal hearing. That is why many of the points the applicant takes issue with now were addressed in the Tribunal hearing. In other words, the Tribunal needed to determine whether grounds for cancellation existed, because the applicant did not clearly concede that point at the Tribunal stage, although he now has. (Emphasis added.) 84 The Federal Circuit Court did not find either of the grounds of review proven, and dismissed the application for judicial review. On the first ground, it found (at [34]) that while the Tribunal used somewhat strong language (stating that it considered the appellant was lying), that was insufficient to give rise to a reasonable apprehension of bias. At [35], the Federal Circuit Court rejected the appellant's submissions about the Tribunal's tone: The applicant said that the Tribunal's tone was a mixture of incredulity, frustration with the applicant personally, condescension, dismissiveness, and passive aggressiveness. In my view, overall, the Tribunal's tone was unremarkable. There may have been some minor lapses, but nothing that, alone or in combination with the other matters alleged, could have given rise to a reasonable apprehension of bias. 85 At [36]-[38], the Federal Circuit Court rejected three further submissions made on behalf of the appellant about aspects of the Tribunal's conduct which were said, either singly or in combination with other matters, to give rise to a reasonable apprehension of bias. 86 It is unnecessary to set out the Federal Circuit Court's reasoning for rejecting ground 2 before it, as this ground is not relevant to the appeal.

The grounds of appeal 87 The appellant is now represented by different counsel to counsel who appeared in the Federal Circuit Court. It is apparent there has been a different approach taken. Counsel frankly conceded as much, while stating he intended no disrespect to previous counsel. Beyond that, there is no evidence of why the contentions now sought to be advanced were not advanced before the Federal Circuit Court. 88 The notice of appeal contains four grounds: 1. The learned trial judge erred by failing to find that the AAT's decision was infected by a reasonable apprehension of bias in the sense of it not being open to persuasion; 2. The decision of the AAT was unreasonable; 3. The AAT and the learned trial judge erred by failing to properly apply and interpret the cancellation provisions of the Migration Act and Regulations. 4. The learned trial judge eared by failing to find that the AAT had not conducted a proper review for the purposes of ss348 and 349 of the Migration Act 1958 (Cth) 89 The notice of appeal did not provide particulars to these grounds.

Leave to raise new grounds on appeal: the Minister's position 90 As a threshold matter, the Minister submits that the appellant requires leave to raise the three grounds that were not raised before the primary judge, being grounds 2-4. The Minister points out that the grounds are not particularised, but that the written submissions in relation to each ground raise issues entirely different from those raised before the Federal Circuit Court. In oral argument, the Minister added that in reality the way the apprehended bias contention is put is also new, and the appellant should require leave to raise the contentions he seeks to make under that contention. 91 The Minister correctly identifies that the principles applicable to an application to raise new grounds on appeal are well established. The Minister relies on Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 at [31]-[33]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48]; BXT17 v Minister for Home Affairs [2021] FCAFC 9; 283 FCR 248 at [24] and Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [94]. The Minister submits: The governing question is whether the Court considers it is expedient in the interests of justice for the new point to be raised. Determining that question requires an assessment of whether there is an "adequate explanation for the failure to take the point" at trial, and its merit. Generally, "leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy". (Footnotes omitted.) 92 The Minister submits that it is not in the interests of justice to grant leave because: (a) The appellant has made no attempt at all to explain why the fresh grounds were not raised before the primary judge; and (b) The appellant's written submissions are "entirely" directed to an issue that the appellant "explicitly conceded" before the primary judge, being that the grounds for cancellation were made out. The appellant's submission in this appeal is that the threshold for proving incorrect visa application information was not met. 93 The Minister contends that the Court should be particularly reluctant to grant leave to raise an issue where a deliberate choice has been made to concede an issue in the Court below.

The appellant: leave and merits 94 Counsel for the appellant relied essentially on the contended merits of the new grounds, and the absence of any prejudice to the Minister. He accepted that in substance the only explanation for the grounds not being raised below was that different counsel had examined the material, and thought of different points. 95 As to the merits of the grounds, counsel developed his submissions orally, but informed the Court that ground 3 was not pressed. 96 On ground 1, counsel submitted a fair minded lay observer would apprehend the Tribunal was not open to persuasion about the appellant having worked in the mobile hairdressing business because of the failure to register the business name for the mobile business until more than a year after the appellant worked there. 97 The appellant conceded in his written submission that: It may very well be that the four grounds coalesce. 98 The appellant is correct in the sense that each of grounds 2 and 4 go to allegations that the Tribunal applied the relevant provisions of the Migration Act incorrectly, unreasonably or otherwise failed in its statutory duty to review the decision of the delegate. In large part, the appellant's written submissions were framed as relevant to the allegation that the Tribunal's decision on the s 108(b) factor was legally unreasonable. However, I apprehend that these submissions in substance are directed at each of the grounds pressed. 99 Referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82], the appellant contended that a single circumstance may "permit more than one characterisation of the error identified". The appellant submitted there were a number of errors in the Tribunal's decision, which individually might amount to jurisdictional error or cumulatively might amount to jurisdictional error. 100 The appellant summarised the alleged errors in the Tribunal's decision as follows: (a) The business name question - the AAT thought that ownership of a business arises out of registration of a business name and that an employee could not be working in two different arms of a business and yet still be working for the employer for the purposes of the visa. (b) The AAT adopted the word 'staff' about the self-styled 'integrity' report when in fact only one staff member was interviewed, (an employee who had a gripe about having a request refused. (c) The AAT requested the primary records of the second site visit (15 August 2017), after the hair dressing business had sold but the department declined to provide that material to the AAT, probably the same employee was interviewed as was interviewed in the previous site visit. (d) The issue of what the employee told the departmental officer at a site visit and what the appellant told the AAT were not binary. (e) The AAT did not grapple with the fact there were two arms to the one business. (f) Although the AAT recorded that the appellant was a qualified hair dresser (see AB 271 paragraph 22) the AAT never referred to that fact in its "Consideration of Claims and Evidence. (g) The AAT saw inconsistencies when there were none (paragraph 32) (Typographical errors in original.) 101 The appellant positively contended in his written submissions that his submissions "are aimed to show that the threshold for proving incorrect visa application was simply not met". In other words, the matter raised by the Minister about the concession before the Federal Circuit Court is properly raised. 102 The errors alleged at (a) and (e) above, are said to be that, in naming his employer as "Mirrors Hair Studio" on his visa application, the appellant was plainly referring to the business name of the nominating employer, Purple Allium. The appellant submitted that his case before the Tribunal was that he was employed by Purple Allium "both at the salon and as a mobile hairdresser". It was therefore incorrect to find at [78] of the Tribunal's reasons that the appellant provided incorrect answers in his visa application because he "did not work as a hairdresser from 15 April 2014 to 15 March 2015 at Mirrors Hair Studio as stated in the visa application form". The mobile hairdressing service was "merely an ancillary brand of Mirrors Hair Studio". 103 The error alleged at (d) appears to be that the Tribunal understood there to be a "binary" distinction between what the departmental officer was told on the first site visit, namely that the appellant "had a support role within the business" that "did not involve cutting hair" and the appellant's claims to have worked as a hairdresser in the mobile hairdressing service. The appellant relied on the decision in Singh v Immigration Review Tribunal [1993] FCA 681; 44 FCR 495 for the proposition that a person may properly describe themselves as working in a skilled role (in this case, a hairdresser) while also spending a large portion of their working time undertaking tasks that do not require any specialised skill. The determinative question is whether it is necessary for the person to have the requisite skills to occupy the position: see Singh at 499. 104 There was evidence before the Tribunal that the appellant had worked as a hairdresser, mainly in the mobile hairdressing service, each week. The Tribunal therefore fell into error by considering only the work that was done at Mirrors Hair Salon: see Tribunal's reasons at [76]. 105 In relation to (g), paragraph [32] of the Tribunal's decision states: The Tribunal noted that in his oral evidence the applicant is now stating that he did work as a hairdresser at Joondalup hairdressing salon and pointed out the inconsistency in his written submissions and oral evidence. 106 The appellant submits that this paragraph is simply further evidence that the Tribunal "did not appreciate the case before it", being that there were two arms to the employer's business, and that the appellant worked as a hairdresser in one of those "arms". Counsel for the appellant emphasised the description of the position of hairdresser in the Australia and New Zealand Standard Classification of Occupations (ANZSCO) Code, which he submitted demonstrated the Tribunal did not appreciate what was accepted as being involved in performing work as a hairdresser. 107 In respect of the error alleged at (b), the appellant submits that, in the absence of evidence to the contrary from the Minister, it is likely that the same staff member was interviewed at both the 2015 and 2017 site visits, and that this individual's claim that the appellant did not work as a hairdresser at Mirrors Hair Salon is therefore uncorroborated. Only the "Post Site Visit / Interview Report" for the 2015 visit was before the Tribunal. That report notes that the employee interviewed "stated she wanted to be employed full time however she was refused by the owner". The appellant contends that this evidence suggests that the employee "had a gripe against the employer" and implies that she may as a result have provided inaccurate information about the appellant's work at the salon. There was therefore insufficient evidence for the Tribunal's finding at [4] that the site visits "confirmed that the visa holder did not work as a hairdresser for his sponsor Purple Allium Pty Ltd trading as Mirrors Hair Studio". 108 The appellant on this basis submitted that the Tribunal was in error to affirm the visa cancellation decision under s 109(1), as there no proof of non-compliance as would justify a decision that there was non-compliance under s 108.

Merits of the grounds: the Minister's submissions in summary 109 On ground 1, the Minister referred to CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 and summarised the causal aspect of the test for apprehended bias as follows: In order to establish apprehended bias, having regard to the operation of Part 5, the appellant must: (1) identify what it is that might have led the Tribunal to make a decision other than on its factual and legal merits; and (2) articulate a logical connection between the identified thing and the feared deviation from deciding the issue on its merits. (Footnotes omitted.) 110 The Minister submitted: None of the matters raised by the appellant reveal such a connection. The Tribunal put matters to the appellant for comment and considered his responses. The Tribunal's consideration of evidence, and its application of the discretion in s 109 (and prescribed factors in reg 2.41) suggest it applied an open mind to the appellant's case. 111 Given the way the appellant's submissions were structured, the Minister's written submissions considered grounds 2 and 4 together. 112 The Minister submitted that the appellant has failed to identify a lack of probative material or logical grounds in the foundations of the Tribunal's decision such that it could be said to be legally unreasonable. The Minister contended that: Indeed, the fundamental difficulty for the appellant is that he gave evidence to the Tribunal that he had worked only 2 to 3 hours per week (out of about 25) cutting hair at the Studio, and he did not work there as a hairdresser at all from July 2014 to October 2016 [AB 272 [33]-[34]]. The Tribunal concluded that the appellant had given incorrect information when he wrote he worked as a hairdresser for the Studio from 15 April 2014 to 15 March 2015 [AB 276-7 [74]-[78]]. Given the appellant's own evidence, none of the matters raised on appeal, either individually or cumulatively, reveals illogicality or irrationality in that conclusion. 113 In relation to the appellant's argument that the Tribunal failed to recognise that the mobile hairdressing service was an "arm" of the same business as the studio, the Minister submits that the appellant's own written submissions to the delegate consistently reference two separate businesses. Regardless, the Tribunal's task was to assess whether it was "incorrect" for the applicant to have stated in his visa application that he was employed as a hairdresser by Mirrors Hair Studio from April 2014 to March 2015. The Tribunal understood the evidence before it as to the existence of the mobile hairdressing service and the studio, and their relationship as businesses both operated by Purple Allium: see [6], [27] and [77] of the Tribunal's reasons. The Minister submitted that: In circumstances where the appellant performed about 20-25 hours of work at the Studio, of which no more than 2-3 hours was hairdressing (the remaining being performing management/administrative tasks), and an unspecified amount of hairdressing work for the Mobile Service on weekends, it was not irrational for the Tribunal to decide that the appellant had given an incorrect answer in his form. 114 In addition, the Minister submitted that the appellant explicitly conceded by his written submissions to the delegate that he did not work as a hairdresser at Mirrors Hair Studio, and at the hearing gave evidence that "from July 2014 to October 2016" did not work as a hairdresser at the studio. This was a rational basis for the Tribunal's decision that the appellant did not work as a hairdresser at the studio. 115 The decision in Singh concerned the meaning of the phrases "permanent, full-time basis" and "highly skilled occupation" in relation to visa requirements contained in then reg 51 of the Regulations. The Minister submitted it is plainly distinguishable from this case. 116 The Minister submitted the Court should reject the appellant's complaint about the use of the word "staff" in the Tribunal's reasons and its reliance on the evidence arising from the site visit, because this evidence was consistent with the appellant's own evidence. The appellant's evidence was that the staff at the salon did not know about the mobile hairdressing service or any hairdressing work he did at the salon outside of business hours. The appellant's contentions about the interviews being with a single employee who had a "gripe" are not to the point, and in any event ought to have been raised before the Tribunal. 117 In oral submissions, counsel for the Minister succinctly reduced the Minister's submissions as follows: But in my submission, the story is being told here [in the appellant's material] of there being two businesses. One is the Mirrors Hair Studio, one is the mobile service. And if I can put the Minister's submission on this question in a nutshell, it is that, presented with a purportedly incorrect statement to the effect that the appellant worked as a hairdresser at Mirrors Hair Studio from 15 April 2014 to 15 March 2015, which is the one contained in the notice and is also extracted on that page. And then presented with submissions that say, "Well, the appellant didn't work as a hairdresser at one of those businesses," which is the business he identifies for the purposes of section 101, it's a rational conclusion, regardless of all the other circumstances, to reach that the information to the effect that he was an employee of Mirrors Hair Studio is incorrect. 118 Thus, the Minister's submissions hinge fairly critically on the proposition that in the visa application, the business nominated was Mirrors Hair Studio, and the question whether the Tribunal could be lawfully satisfied that the appellant provided "incorrect answers" must be assessed against that fact.

Post-hearing developments 119 After judgment was reserved, the Minister informed the Court of a relevant recent Full Court decision, Contreras v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 154. By agreement, the parties sought, and were granted, leave to file brief submissions regarding the effect of the decision in Contreras. 120 The Minister drew the Court's attention to [35] of the Court's reasons, concerning the way in which ordinary terms used in a visa application ought to be interpreted for the purpose of determining whether "incorrect" answers have been given in a visa application. The Minister submitted that this authority is consistent with the submission at [19] of the Minister's written submissions that terms like "employer" take their ordinary meaning in this context. Where the appellant had stated he was employed as a hairdresser by Mirrors Hair Studio in his application, and: (b) the appellant conceded in the written submissions given to the Tribunal that he did not perform the duties of Hairdresser at the Studio [AB 129, 131, 132]; (c) the appellant informed the Tribunal at the hearing before it that he "would cut hair 2-3 hours per week" at the Studio, and then that he "did not spend any time from July 2014 to October 2016 at the [Studio] as a hairdresser" [AB 272 [32]-[35], 276-277 [75]-[76]], it was open to the Tribunal to conclude that the information given by the appellant in the application form was "incorrect" for the purpose of s 101(b) of the Act. 121 The appellant's submissions referred the Court to the terms of reg 5.19 of the Regulations in relation to criteria for a direct entry nomination, and in particular that part which states that the position in respect of which the employer nomination is made must correspond to tasks of an occupation specified by the Minister. Relevantly that specification is found, for the position of hairdresser, in the ANZSCO code 391111, skill level 3. 122 The specified tasks for a hairdresser in the ANZSCO code were said in the appellant's submissions to "include": • providing advice on hair care, beauty products and hairstyles • shampooing hair and conditioning scalps • colouring, straightening and permanently waving hair with chemical solutions • cutting hair with scissors, clippers and razors styling hair into dreadlocks and braids and adding hair extensions • shaving and trimming beards and moustaches • cleaning work areas and sanitising instruments • arranging appointments and collecting payments • may clean, colour, cut and style wigs and hairpieces 123 Although the ANZSCO Code itself was not in evidence, there was no objection taken by the Minister to these references except to contend they were of limited relevance because the question about whether an answer is "incorrect" should be decided on the ordinary meaning of words in the answers. The appellant gave a hyperlink to the Code itself. The appellant submitted that the ANZSCO Code description made it clear it was accurate to say a person shampooing hair was doing the work of a hairdresser. The appellant further submitted that the term "employer" should be read in context, such that by naming Mirrors Hair Studio, being a business name, as his employer, the appellant should be understood as a referring to Purple Allium.

Leave 124 I consider leave should be granted to raise new grounds 2 and 4, and insofar as leave is required to raise a different basis for the apprehended bias claim, leave should be granted. 125 As Gilmour J and I said in Maharjan at [32]-[33]: There are other Full Court authorities which could be understood as placing greater emphasis on other factors and especially on holding a litigant to her or his "case" as run at first instance (see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89] (Flick and Rangiah JJ, Logan J agreeing)) but in our opinion the passage above represents the applicable law. The touchstone is always the interests of the administration of justice. Sometimes those interests will favour holding a litigant to her or his case at first instance, sometimes not. An important consideration is the merit of the new ground sought to be raised. 126 Further, in Maharjan at [31], we endorsed the approach set out by Griffiths and Perry JJ in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510, including the following proposition: The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. 127 Questions of leave will very much depend on the facts of an individual case, and on the merits of the legal arguments sought to be raised, assuming no prejudice to the Minister. Such prejudice to a repeat and institutional respondent is only likely to arise if insufficient notice is given of a new argument, or it is likely that the course of the proceeding in the Court below would have been different. Absent being satisfied of real prejudice, it is unlikely to be in the interests of the administration of justice to allow an exercise of public power that the Court considers is affected by jurisdictional error to stand: see BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40; 77 AAR 165 at [73]-[76] and the cases cited therein. 128 The Minister did not contend there had been insufficient notice of the proposed grounds, and dealt fully in writing and orally with them. Properly, the Minister did not submit there was any specific prejudice to the Minister in the new grounds being raised, but did submit that the bar to a grant of leave to raise a new ground is appropriately higher in circumstances where that ground relies upon an issue that was deliberately conceded in the Federal Circuit Court below. 129 In the present appeal, the grounds have merit, and the Tribunal's task has so fundamentally miscarried that its decision cannot be allowed to stand. Although there was a concession made on behalf of the appellant before the Federal Circuit Court about the first stage of the Tribunal's task in s 108(b) of the Migration Act, in the particular circumstances of this appeal I do not consider leave should be refused because of the existence of that concession, by different counsel. That is because of the gravity of the errors in the Tribunal's approach, which have been revealed by the different course of analysis undertaken on the appeal by the appellant's present counsel.

Ground 1 130 For the reasons I have outlined above, I find that a reasonable lay observer might have apprehended that the Tribunal might not have brought an impartial mind to the review of the delegate's s 109 cancellation decision. The factors to which the appellant referred are ones with which I agree, but there was a constellation of factors, as set out at [64]-[80] that might have contributed to a reasonable observer's impression: (a) the Tribunal's focus on, and use of, irrelevancies (such as the registration of the business name); (b) the stereotypical assumptions about the appellant's religious practices; (c) the focus on there being in the Tribunal's view another basis to cancel the appellant's visa so that - an observer might apprehend - the Tribunal considered that result should occur in any event; (d) the Tribunal's inaccurate summaries of the outcome of the integrity checks including the absence of any recognition that the 2015 check occurred before the grant of the visa; (e) its failure to give any consideration to the range of tasks encompassed in the ANZSCO description for hairdresser; (f) the Tribunal's finding at [90] to which I have referred at [43] above; (g) its characterisation of the appellant "changing" evidence when this was not the case; (h) its overall impatience with the appellant during the hearing; (i) the somewhat hostile questioning about whether the staff members spoken to during the October 2015 site visit were "lying" and other lines of questioning I consider to have been harassing the appellant; (j) the Tribunal's inaccuracies in summarising what the appellant's evidence had been. 131 There are clear logical connections between these factors and the feared deviation from the Tribunal deciding the review on its factual and legal merits. 132 Having heard the apprehended bias argument put on a different basis on the appeal, and having examined the evidence, I consider the Federal Circuit Court erred in not concluding the Tribunal's decision was affected by apprehend bias. That is a conclusion arising from the way the appeal was conducted, rather than any specific criticism of the reasoning of the Federal Circuit Court. Since the appellant's migration agent was told in no uncertain terms during the review hearing that she was not entitled to speak, there can be no objection to upholding this ground on the basis of waiver. Further, a substantial component of the apprehension arises from the Tribunal's reasons on the review, given after the Tribunal hearing. Ground 1 should be upheld.

Grounds 2 and 4 133 As the Federal Circuit Court observed in its reasons at [41], while there was a concession before the Federal Circuit Court that there were grounds for the cancellation of the appellant's visa under s 109 of the Migration Act, there was no such concession before the Tribunal, and therefore it was the first task of the Tribunal's review to determine afresh whether the grounds for cancellation existed. It was to this task that the appellant's grounds 2 and 4 were directed. 134 In Contreras at [35], the Full Court explained how the determination of whether answers were "incorrect", for the purposes of s 101, should be approached: Central to any decision as to whether an answer is 'incorrect' is an understanding of the question being asked and the context in which the question is being asked. We accept that determining the meaning of the question should be undertaken with a practical bent, without any need for legal research or advice. That is, "the ordinary meaning of the words or phrases in a visa application form should not be lightly departed from": see eg Le v Minister for Immigration and Border Protection (2019) 272 FCR 1 ('Le v Minister') at [32] (Nicholas, Katzmann and Bromwich JJ). Further, the application form should be read having regard to the reasons for seeking the information: see eg Le v Minister at [31]. Those reasons include whether a visa should be refused under s 501 of the Act, which includes whether a person is not of good character: see s 501(6)(c). Then it must be recalled that the questions apply to persons coming in from all parts of the world, who are subject to different types of criminal procedures and processes. For this reason, the questions must necessarily be general and capable of eliciting the information requested in the context of a wide variety of jurisdictions. (Emphasis added.) 135 At [45]-[47], the Full Court confirmed that whether an incorrect answer was deliberately or inadvertently given does not affect the question whether the precondition for cancellation in s 108, read with s 101, is made out. The only issue is whether the decision-maker is satisfied the answer given is incorrect. The question of inadvertence, or a conscious decision to provide incorrect information may however be highly relevant to the exercise of the discretion whether or not to cancel a visa, the precondition having been satisfied. 136 As the Minister accepted, while this first stage - whether incorrect answers have been provided - requires the formation of an opinion or state of satisfaction, that opinion or state of satisfaction must be reasonably and rationally formed, and based on probative material: see SHJB at [22]. The appellant's grounds 2 and 4 contend the Tribunal's state of satisfaction was neither reasonably nor rationally formed. 137 I have described the "incorrect" answers at [26] and [27] above. 138 The "context" in which the questions were being answered on the visa application, included the clarifications and disclosures on behalf of the appellant by his migration agent in the material to which I have referred at [16] and [19], all of which occurred before the visa was granted. All those matters formed part of the "visa application" as the Notice of Intention to Cancel itself pointed out: see [26] above. In other words, the delegate who granted the visa was fully aware of the context in which the appellant was working as a hairdresser, and that he was working for a corporation which ran two hairdressing business, one of which was called Mirrors Hair Studios, and one of which was a mobile hairdressing studio. The employer nomination - in the name of Purple Allium Pty Ltd - was approved at the same time as the visa was granted. The relationship between Purple Allium and its business name of Mirrors Hair Studio was disclosed and, I infer, must have been appreciated by the delegate who approved the employer nomination and granted the visa. The "position" of hairdresser was to be assessed by the Tribunal by reference to the description given in ANZSCO and the list of tasks there set out, not only cutting hair: see [122]. I reject the Minister's submission that the description in the ANZSCO Code is irrelevant. The ANZCO Code was central to the employer nomination and the basis for the grant of a skilled visa. The scope of what tasks a "hairdresser" performs should have, but did not, inform the decision whether an incorrect answer was given. 139 No Tribunal acting reasonably, or rationally, could have reached the conclusion that the answers given were "incorrect". That is especially so since the contextual details, which remained substantially consistent on the appellant's account throughout the stages of the cancellation process, were all disclosed to the delegate before the visa was granted and before the employer nomination was approved. The visa was granted in full knowledge of those disclosures. The Tribunal appeared to be intent on picking apart straightforward information in answer to short form questions in the visa application, for which a full context was volunteered to the delegate who granted the visa, so as to reach a conclusion adverse to the appellant and place itself in a position to cancel his visa. Ground 2 should be upheld. 140 The task undertaken by the Tribunal was not on any measure the review task required of it under s 348 of the Migration Act. While it is not necessary to uphold the appeal on ground 4, I accept the error could have been described in the terms of the Tribunal not undertaking the review required of it by s 348 of the Migration Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; 143 FCR 314 at [36].

Conclusion 141 The appeal should be allowed. My present view is that costs should follow the event on the appeal, but there should be no orders as to the costs of the proceedings before the Federal Circuit Court, because of the substantial alterations in the way the matter has been presented on the appeal. I consider the appropriate order, to reflect the circumstances, is that the parties should bear their own costs of the proceeding in the Federal Circuit Court. 142 However, the parties will be given an opportunity to seek different orders as to costs, either by agreement or by way of competing submission. I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.