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.