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

The appeal 33 The appellants' sole ground of appeal, with particulars more elaborate than usual, is as follows: The Federal Circuit Court erred by failing to find that the procedure adopted by the Tribunal is affected by an apprehension of bias. Particulars a. The appellant relies on the overall impression to be gained from listening to the audio including the Tribunal's harsh and combative tone (assisted by reading the transcript which is exhibited to the affidavit of Carina Ford affirmed and filed on 3 July 2018 (FCC file number: MLG2132/2016) and also relies on the following matters. b. The Tribunal was not interested in evaluating for itself whether India Post Office met the requirements of a "financial institution" within the meaning of r 1.03 of the Regulations and was instead exclusively concerned with whether India Post Office was mentioned in the list maintained by the High Commission. That of itself tends to indicate that the Tribunal member brought with him a mind pre­fixed as to how this review would be conducted; that it would be decided exclusively against the policy. c. The fair minded lay observer, fully aware of the statutory regime and all relevant circumstances would be troubled by this observation. d. On page 2 of the transcript, line 33, filed on 3 July 2018 (FCC file number: MLG2132/2016) very early into the hearing, the member says "I'm not sure where you got it from Ms Kaur, but it's not a far at this stage. Post office accounts are not an acceptable form of funds". e. This statement was made in response to the appellant seeking to advance evidence that India Post Office was at one time considered to be a financial institution by the Australian High Commission in India; if accepted, this would have enabled her to argue that the current opinion of the Australian High Commission - not being anything more than the opinion of an official, and not having any legal consequence - was wrong in not thinking India Post Office was a "financial institution" as defined. f. This comment by the Tribunal would make it unambiguously clear to the fair minded lay observer that from that moment onward, the outcome of the review was settled, on the basis that India Post Office was not mentioned in the list maintained by the Australian High Commission in India. As that was not conclusive and the applicant was entitled to be heard to seek to persuade the member not to adopt that position, the fair minded lay observer would know at this point that she was denied such an opportunity. g. This impression is corroborated by the observation on page 4 of the transcript, line 14, filed on 3 July 2018 (FCC file number: MLG2132/2016) where the Tribunal member essentially restates his position and then indicates that the decision would be made on the same day as the oral hearing. Eleven minutes into the hearing, the Tribunal indicates that the case would be decided on that day - a plain indication that his mind was made up and closed to persuasion. h. On page 6 of the transcript filed on 3 July 2018 (FCC file number: MLG2132/2016) from line 8 onward, the Tribunal directs the applicant's attention to her study history in was is plainly intended to communicate criticism of the education provided, and of the applicant. [T]he applicant then commences an answer that seeks to respond to the Tribunal's concerns but is rudely cut off "I'm not interested in the study". That was a remarkable thing to say to a person, just after having essentially scolded them on the topic. i. Taken cumulatively, the fair minded lay observer may have thought that the Tribunal may not be bringing an open mind to the appellant's case. 34 The appellants put the following points which they said in combination amount to a reasonable apprehension of bias. 35 First, they relied on the Tribunal's manner, tone and interruptions. They said that the overall impression to be gained from listening to the audio recording including the Tribunal's harsh tone revealed a hostile atmosphere. I disagree as I will later explain. 36 Second, they said that the Tribunal did not evaluate for itself whether India Post Office met the requirements of a "financial institution" within the meaning of reg 1.03 and was instead exclusively concerned with whether India Post Office was mentioned in the list maintained by the Australian High Commission in India. It is said that that of itself indicated that the Tribunal member brought a mind pre-fixed as to how the review would be conducted, that is, that the review would be decided based on the then current list maintained by the High Commission. This submission does not sit well with how the first appellant put her case before the Tribunal. I will return to this later. 37 Further, it is said that the register of acceptable institutions maintained by the High Commission was nothing more than the opinion of officers of the High Commission, and did not control the outcome of the review before the Tribunal. And it was pointed out that the appellants presented some evidence that the High Commission had, at some earlier point in time, treated deposits at India Post Office as capable of meeting cl 573.223(2)(a). 38 Third, it is said that the appellants' evidence was rejected out of hand. The evidence led by the first appellant was that at some point in time India Post Office was regarded as an acceptable source of funds. And it was said that there was no evidence before the Tribunal to suggest that the High Commission had never included India Post Office on its list. Indeed, the only evidence was to the contrary. Essentially, the appellants said that it appears that the Tribunal, for unstated reasons and without any evidence, rejected the claim that India Post Office was once an acceptable source of funds. 39 It is said that the Tribunal said early in the hearing that "I'm not sure where you got it from Ms Kaur, but it's not a fact at this stage. Post office accounts are not an acceptable form of funds". This statement followed the review of the High Commission website by the Tribunal member. 40 It is said that the fair-minded lay observer, fully aware of the statutory regime and all relevant circumstances would be troubled by this statement. It was made in response to the first appellant seeking to advance evidence that India Post Office was at one time considered to be a financial institution by the High Commission. And it is said that if that proposition was accepted as true, it would have given rise to a meaningful issue in the review about what should happen next. The appellants said that the Tribunal would have been placed in a position where it would have been shown that there was some real debate as to whether India Post Office accounts were acceptable. In turn, so it is said, that would have given some force to an argument that the then current opinion of the High Commission was not decisive. 41 Fourth, the appellants said that when the Tribunal checked the website at the hearing, from the first appellant's perspective she was presented with a crucial fact that conflicted with her case. This meant that she could no longer expect to rely solely on what she thought, albeit wrongly, was the opinion of the High Commission. Accordingly, she would then have needed direct evidence of the nature of India Post Office with reference to the criteria in reg 1.03. But it is said that she was evidently not prepared to meet that task on the day of the hearing. Accordingly, so the appellants said, it would have been apparent to the Tribunal that there would have needed to have been an adjournment. 42 But, so the appellants said, relevant comments made by the Tribunal made it clear that the outcome of the review was settled on the basis that India Post Office was not mentioned in the list maintained by the High Commission. And that being so, so it was asserted, the Tribunal would have met any adjournment request as being futile. 43 Fifth, it is said that the Tribunal directed the first appellant's attention to her study history and made remarks, irrelevant to the review, that could only be seen as directed and personal criticism of the first appellant. It is said that the first appellant at one point sought to respond to the Tribunal's concerns but was rudely cut off with the comment "I'm not interested in the study". It is said that that was a remarkable thing to say. It is said that the Tribunal may have been influenced adversely against the first appellant by something irrelevant to the review. 44 Sixth, other complaints were made as to the shortness of the hearing, the fact that the decision of the Tribunal was made on the day and as to the text of the written reasons. 45 The appellants say that the fair-minded lay observer considering all of these matters might apprehend that the Tribunal member might not have brought an impartial mind to the case and might have been distracted in the review from the true course of decision making. 46 I would reject this ground of appeal. 47 The relevant principles in this field relating to this ground are not in doubt. I should note that an apprehension of bias is asserted, not actual bias. The "double might" test applies with the two steps discussed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]. The relevant construct is that of the informed and fair-minded lay observer, with the totality of the circumstances needing to be considered. 48 I need do little more than refer to and apply the expositions of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [25] to [27] and [77] to [85] and of Moshinsky J in MZZLO v Minister for Immigration and Border Protection (No 2) (2016) 246 FCR 111 at [52] to [59], [72] and [78]. I should also refer to what was said in CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47 at [17] to [21] and [27] per Kiefel CJ and Gaegler J, at [53] to [59] and [68] to [73] per Nettle and Gordon JJ and at [130] to [136] per Edelman J more recently. 49 Before dealing with the appellants' main arguments, I should make some observations about the evidence. 50 At the invitation of the appellants' counsel I listened to the two audio recordings of the Tribunal hearing, one of 4 minutes and 32 seconds, and the other of 23 minutes and 17 seconds. Having done so, there is little substance to the apprehension of bias assertion to the extent that it is said to be based on the Tribunal's manner, tone and level of interruptions as so appreciated from the perspective of the informed and fair-minded lay observer. 51 The first tape discloses a polite and respectful Tribunal member properly inviting the first appellant to put her case. I was not provided with a transcript of this tape, but only a transcript for the second tape to which I should turn. 52 In my view, having also listened to the second tape and following at the same time the marked up transcript provided by the appellants' counsel, I see little if anything that the lay observer might perceive suggested a possibility of a lack of impartiality. 53 At the outset the member was courteous, calm and enquiring of the first appellant. 54 Further, the member went to the website identified by the first appellant apparently with an open mind. Further, the member from time to time drew attention to the "time of decision" requirement to determine whether the relevant institution was a "financial institution". Sometimes the word "today" was used. The member from time to time pointed out to the first appellant that what she was putting forward did not meet that requirement. 55 Further, much of the time the member was calm and matter of fact in addressing what was being put forward by the first appellant. 56 Now various passages were drawn to my attention by the appellants' counsel suggesting that the member was not open to persuasion concerning India Post Office as being a "financial institution". I do not think that is a fair criticism. The member considered what was being put forward by the first appellant and explained to her why that didn't meet the requirement. The first appellant put nothing further forward other than what purported to be a photocopy of a web-page which went nowhere. And at no stage did she indicate that she wanted to justify the position of India Post Office by other material. Further, there is no suggestion that she wanted an adjournment for that purpose. 57 The appellants' counsel made much play of some passages suggesting that the member had gone too far in saying that India Post Office was not a "financial institution" rather than saying that the information provided did not satisfy him that it was. Perhaps the member was too strong on a few occasions. But the point goes nowhere. The first appellant only endeavoured to rely on the copy of the web-page and the website and nothing more. And that it would seem did not establish the financial institution point. 58 Indeed, when the website material went nowhere, the first appellant then shifted to her father's more recently opened account with another institution, being HDFC Bank, which as the member explained was "not evidence of funds held for a period before you lodged your application". In other words she did not at that time of the hearing suggest that she wanted to put other evidence before the member concerning India Post Office. Further, in terms of a consideration of the father's account, the member was open minded. 59 Now the appellants' counsel suggested that the member cast aspersions concerning the father's account. But that characterisation is inaccurate. The member did laugh at one point. Perhaps it could be perceived to be scoffing. But the father's account with the other institution had on the material put to the Tribunal been opened or at least put in substantial funds recently. I will return to this question later concerning some new material now belatedly sought to be tendered before me that was not put to the primary judge. 60 Now perhaps up to and including such points, the member was expressing his views in decisive tones. But the lay observer would appreciate that the issues were relatively straightforward. And the member was courteous and gave the first appellant a chance to deal with them. 61 Let me at this point dispose of another suggestion made by the appellants' counsel. It was said that there were numerous interruptions by the member. But that characterisation is inaccurate. Moreover, as the lay observer would appreciate, none of the interruptions constituted over-bearing behaviour or thwarted the first appellant in fairly putting her case. A review of the transcript and listening to the tapes makes that apparent. 62 Further, during the hearing there was some discussion of the education and study that the first appellant had been engaging in. But significantly, this was first raised by the first appellant, and not the member. But this discussion was peripheral to the central question concerning the "financial institution" point. Now at the start of this particular topic, the member was polite and enquiring, but he then became irritable. But in context it would appear that he seemed irritated at the education provider. 63 But in any event he calmly went back to the real issue. His statement "I'm not interested in the study" was not dismissive as such nor was it "remarkable". It did not involve any personal or gratuitous attack whatsoever. And in any event, the education question was not the real issue that the member needed to deal with, to which he returned. And at that point he gave the first appellant another opportunity to deal with the financial institution point. 64 Then the member gave the appellants' agent, Mr Bajwa, an opportunity to say what he wanted to say. Now the lay observer would perceive that this dialogue was unsatisfactory. Mr Bajwa referred to a website and "snapshots from the website" that went nowhere. The member explained again the "time of decision" requirement. Mr Bajwa then asserted that on previous occasions in other matters what he was asserting to the member had been somehow accepted. But the member, as he was entitled to do, drew attention to the present case, what was before him and the "time of decision" requirement. If it may be perceived that he gave short shrift to Mr Bajwa, it was in the context of what had gone before in discussions with the first appellant. Further, it may also be perceived that Mr Bajwa, as an advocate for the appellants, was winging it. 65 I should make one other point. Mr Bajwa did not specifically raise with the member any of the material now sought to be put before me concerning some of the father's other accounts to suggest that that somehow changed the landscape concerning the India Post Office. 66 The hearing then concluded. The member adjourned the hearing and came back 10 minutes later and gave his oral decision. 67 Now having listened to the tapes, there is little in the appellants' complaints. Further, I do not consider that the marked up parts of the transcript provided to me by the appellants' counsel greatly assisted. All of the transcript and all of the tapes had to be considered to obtain the proper context. I will return to the informed and fair-minded lay observer test in a moment as it is that perspective that is to be applied rather than my own views in applying the "double might" test. 68 Now I should say something else about the evidence sought to be tendered before me. 69 The appellants sought to tender before me an affidavit of Mr Suraj Khatri, a migration agent, affirmed on 12 February 2021 concerning the father's account and fixed deposits of the father held at Goluwala Post Office in 2015 and earlier. It was said by Mr Khatri that the material annexed to that affidavit had been uploaded to the Department's online visa application system in 2015 relating to the appellants' application. 70 Now it may have been, but none of this was before the primary judge. I explained to the appellants' counsel that leave was necessary to rely on it. Counsel asserted otherwise, saying that because it was before the delegate and the Tribunal, no leave was necessary. 71 I disagree. Leave is necessary. But I will give such leave although it takes the appellants nowhere on their sole ground of appeal. Such material does not assist the appellants to show any apprehension of bias on the part of the Tribunal. Moreover, no issue has been taken with what the Tribunal said in its reasons (at [6]). And in any event, none of this met the "time of decision" requirement concerning India Post Office. 72 Let me now address the appellants' main points. 73 The appellants' counsel during his address sought to draw out five separate indicia that he said supported the apprehension of bias ground. But as far as I am concerned, it is not convenient to analyse such indicia in precisely the way counsel has put them. Let me group them differently. 74 First, reference was made to the Tribunal's manner, tone and interruptions. But I do not consider, after listening to the tapes, that the appellants have fairly characterised such matters. 75 Second, reference was made by the appellants to statements by the Tribunal which they said suggested that the member was not open to persuasion. I do not consider that the informed lay observer might so perceive. The member did express his views, but only after giving the appellants an adequate opportunity to put their case. Further, so called expressions or assertions of disbelief were little more than the member properly, if not vigorously, challenging what was being asserted. In my view, the informed lay observer is likely to have so appreciated. Further, I am not here dealing with "premature assertions of disbelief" as discussed in some of the authorities. The issue before the Tribunal did not involve the credibility of versions of events. 76 Relatedly, a distinction was made between positive statements made by the member that India Post Office was not a financial institution and negative statements that there was no evidence that it was. Clearly on the material, the latter proposition was apparent as at the time of decision. The appellants singularly failed to establish that at the time of decision, India Post Office was a "financial institution" as defined in reg 1.03. But if the member went further in making statements of the former type, in context the informed lay observer is unlikely to have been troubled by this. The appellants had no other evidence concerning India Post Office. And no adjournment was sought. 77 Third, the appellants referred to the short duration of the hearing, but the submission goes nowhere. The real issue before the Tribunal was a short point and the appellants were given every opportunity to put their case. The informed lay observer could be taken to have appreciated such matters. 78 Fourth, the appellants seemed to complain about the ex-tempore nature of the decision. But the Tribunal was permitted to make such a decision. The fact that the Tribunal indicated that it might deliver an ex-tempore decision could not be taken by the informed lay observer as indicating a possible lack of impartiality, particularly given the confined issue before the Tribunal. 79 Fifth, the appellants referred to the text of the Tribunal's written reasons. But the written reasons disclose no apprehension of bias. Indeed, they fairly summarise and analyse the appellants' case before the Tribunal, as can be gleaned from the transcript and the tapes. 80 Let me make a more general point here. Context is all important in assessing the apprehension of bias question, as the Minister's counsel pointed out. And the lay observer would have appreciated the following context. 81 First, the process before the Tribunal was inquisitorial. Accordingly, some robustness was to be expected from the member to test the appellants' case. 82 Second, the delegate had previously said and informed the appellants that there was insufficient evidence on the financial institution question. That was the context for the Tribunal hearing. And the appellants were required to put material before the Tribunal necessary to address that question. The appellants were well appreciative of this requirement. 83 Third, the appellants' case before the Tribunal was essentially the screenshot and website material. That was what they asserted satisfied the financial institution point in terms of India Post Office. But such material was of short compass and easily ascertainable by the member. The member fair-mindedly went to the website. Importantly, on the India Post Office point the appellants did not seek to advance any other material beyond this. That is well apparent from the tape and the transcript. I have already dealt with the migration agent's statements that came towards the end of the hearing and appeared to go nowhere. 84 Let me say something more about the evaluation made by the Tribunal. 85 In my view, the Tribunal appropriately evaluated whether India Post Office met the requirements of a "financial institution" on the material before it and as advanced by the appellants. 86 Further, as I have said, the delegate relied upon policy guidance which stated that "[s]ome posts may maintain a list of acceptable financial institutions" and that "the list of financial institutions for India and Nepal is maintained on the Australian High Commission New Delhi website". And in this case, the appellants chose to satisfy the criteria by reference to the policy alone. They contended before the Tribunal that India Post Office was on the list. That was made clear from the first appellants' letter to the Tribunal, an extract of which I have set out earlier. 87 Now the Tribunal did not accept this evidence. Indeed, it viewed the website during the hearing, but the website did not reveal what the appellants suggested it did. 88 Further, the appellants did not otherwise contend that India Post Office satisfied the relevant statutory definition apart from its asserted presence on the High Commission's list. Accordingly, once the Tribunal had not accepted the appellants' evidence about the High Commission website, it was open to the Tribunal to be satisfied that India Post Office was not a "financial institution". Moreover, I agree with the Minister's counsel that the Tribunal's statement that "it's not a fact at this stage. Post office accounts are not an acceptable form of funds" show little more than that the Tribunal had rejected the evidence the appellants gave to demonstrate that India Post Office was a "financial institution". 89 Further, had the appellants attempted to establish that India Post Office was a "financial institution" separately from the High Commission's list and sought an adjournment to that effect, it is not apparent that the Tribunal would necessarily have refused an adjournment. Indeed, there was no suggestion of any adjournment being sought by the appellants to deal with the India Post Office point on an alternative basis to the screenshot / website point that had been advanced by the appellants. 90 Further, and as I have said, once the Tribunal had indicated that the evidence provided by the appellants did not advance their case as at the date of the Tribunal's decision, the appellants sought to satisfy the financial capacity requirements through a different financial institution, namely, the father's account with HDFC Bank. And in that context, the member fairly and open-mindedly dealt with that question as well. 91 Further, I agree also with counsel for the Minister that the fact that the Tribunal asked on a number of occasions whether the first appellant had any further submissions, and then heard argument about, and ruled upon, whether the alternative financial institution satisfied the statutory requirements, showed that the Tribunal approached the matter with an impartial and receptive mind. 92 Finally, the appellants' criticism of the Tribunal's statement that the appellants needed to satisfy the relevant criteria as at the date of the Tribunal decision being "today… [or] whenever the decision is made" is misplaced. This was a reference to the "time of decision" point. But in any event, given the short issue before the Tribunal, there would have been nothing wrong in any event in the Tribunal indicating that it was prepared to give a decision on the day. 93 In my view, none of the matters singularly or collectively relied upon by the appellants demonstrate any apprehension of bias using the "double might" test from the perspective of the informed and reasonable lay observer, who can be taken to have been informed of the context. 94 And more particularly, a fair-minded and informed lay observer, aware of the nature of the decision, the context in which it was made and the circumstances leading to the decision, would understand that the Tribunal was quickly able to reach a strongly held preliminary view on whether India Post Office was a financial institution. 95 In summary, the Tribunal's decision was not affected by any reasonable apprehension of bias. And the primary judge's decision has not been shown to be erroneous in rejecting that ground of review before her. 96 The appeal must be dismissed with costs. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.