Sharma v Minister for Immigration and Border Protection

1. The appeal is allowed.
2. The orders made by the Federal Circuit Court on 10 March 2017 are set aside.
3. The decision of the Migration Review Tribunal made on 29 January 2015 affirming the decision to cancel the appellant's sub-class 573 (Higher Education Sector) visa is set aside.
4. The application for review of the decision to cancel the appellant's sub-class 573 (High Education Sector) visa is remitted to the Administrative Appeals Tribunal for determination in accordance with law.
5. The first respondent pay the appellant's costs of the appeal and of the application for review in the Federal Circuit Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellant, Abhishek Sharma, appeals from orders made by the Federal Circuit Court on 10 March 2017. The Federal Circuit Court dismissed an application for review of a decision of the Migration Review Tribunal made on 29 January 2015. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to cancel the appellant's Student (Temporary) (class TU) Higher Education Sector (sub-class 573) visa (the 573 visa). 2 The sole ground of appeal is that the Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by procedural unfairness in the form of apprehended bias. 3 The appellant completed a Bachelor's degree in accounting in India. On 23 December 2013, a delegate of the Minister granted the appellant the 573 visa with condition 8516 attached. 4 The primary criteria for the grant of the 573 visa were: 573.223 (lA) If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student: (a) the applicant gives the Minister evidence that the applicant has: (i) a level of English language proficiency that satisfies the applicant's eligible education provider; and (ii) educational qualifications required by the eligible education provider; and (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: . (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and . (ii) any other relevant matter; and (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet: (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and (ii) the costs and expenses required to support each member (if any) of the applicant's family unit. 5 "Eligible high degree student" was defined as: an applicant for a Subclass 573 visa in relation to whom the following apply: (a) the applicant is enrolled in a principal course of study for the award of: (i) a bachelor's degree; or (ii) a masters degree by coursework; (b) the principal course of study is provided by an eligible education provider; (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study: (i) the applicant is also enrolled in that course; and (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider. 6 The alternative to the criteria set out in subclause 573.223(1A), is stated in subclause 573.231: If subclause 573.223(1A) does not apply: (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument: (i) made under regulation l .40A; and (ii) in force at the time the application was made. 7 Condition 8516 stated: Condition 8516 states: The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. 8 The appellant satisfied the primary criteria for the grant of the 573 visa because, inter alia, he was enrolled in a Master of Commerce (Professional Accounting) course. 9 On 9 January 2014, the appellant arrived in Australia on the 573 visa. 10 The appellant failed a number of subjects in the first semester of the Masters course. 11 On 1 July 2014, the appellant applied for a TU-572 Vocational Education and Training Sector visa (the 572 visa). 12 On 25 July 2014, the appellant obtained a new enrolment to study commercial cookery which was a subject for which the 572 visa could be obtained. 13 On 29 July 2014, the appellant's enrolment in the Masters course was cancelled by the education provider. That was the degree for which the 573 visa was granted. 14 On 14 August 2014, a delegate of the Minister refused the application for the 572 visa because the appellant had not satisfactorily explained why he made such a significant change in direction within such a short time. Consequently, the delegate was not satisfied that the appellant was a genuine applicant for entry and stay as a student. 15 On 5 September 2014, the Department notified the appellant of the intention to consider cancelling the 573 visa. 16 Late in September 2014, the appellant obtained enrolment in a Bachelor of Accounting course which was a qualifying course for a 573 visa. 17 Section 116(1) of the Migration Act 1958 (Cth) (the Act) gives power to cancel a visa if the Minister is satisfied that the holder has not complied with the condition of the visa. 18 On 1 October 2014, in exercise of that power, a delegate of the Minister cancelled the appellant's 573 visa. 19 The appellant then sought review before the Tribunal. On 29 January 2015, the Tribunal conducted a hearing of the review application. He was assisted by a migration agent, who was present at the hearing. 20 The basis of the ground of appeal lies in what occurred in the course of the hearing before the Tribunal. The appellant now says that the Federal Circuit Court erred in rejecting his claim that the hearing before the Tribunal gave rise to an apprehension of bias. 21 The applicable principles relevant to the circumstances of this appeal are not in issue and can be stated as follows. Apprehended bias is shown if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair and impartial mind to the making of the decision: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson, McHugh, Gummow and Hayne JJ). This test is the same for judicial and administrative decision-makers but its content in terms of what is expected of that decision-maker may often differ according to the type of decision-maker: Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438, at 460 per McHugh J and at 480 per Kirby J. Especially that can be so where the function being discharged is purely administrative rather than judicial or, as here, quasi-judicial (notwithstanding that the Tribunal's merits review function is strictly administrative). The outcome of the present appeal does not turn on any particular difference in content. 22 In Johnson v Johnson (2000) 201 CLR 488 at [53], Kirby J said that the reasonable bystander: "would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers". His Honour continued: The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious. 23 The test for apprehended bias is only satisfied if the lay observer might reasonably apprehend that the decision maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. But that is not to say that a decision maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion. 24 The present case underscores that position because under the statutory regime in question the Tribunal will only embark on a hearing when it is unable to decide the application in favour of the applicant: s 360(2)(A) of the Act. Further, the Tribunal, in the performance of its a statutory task of review under the Act is not precluded from testing the applicant's case by posing questions which challenge the version of facts put forward by the applicant. That questioning may be robust and even confrontational. The reasonable bystander must also be taken to know that the Tribunal is entitled to express doubts about the answers given by the applicant in order to provide the applicant with the opportunity to supply further explanations. Robust questioning or the expression of doubt designed to allow the applicant to respond do not necessarily raise an apprehension of bias because they do not necessarily demonstrate that the decision maker is determined in a view against the applicant. That said, the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude. 25 The nature of the assessment by the Court of whether a hearing is affected by apprehended bias is governed by the need to strike a balance between competing requirements of the legal system. On the one hand, a too demanding a standard for decision makers will have a chilling effect on the exercise of their function as independent decision makers. Thus, the Court must not approach the reasons of a decision maker with an overly critical attitude which zealously seeks to establish error. On the other hand, a too lax a standard applicable to decision makers will threaten the confidence of the public and parties in the fairness of the process of the system. 26 The appellate function allows this Court to intervene only if error is found in the orders made by the Federal Circuit Court. The evidence of what occurred in the hearing before the Tribunal is found in an audio recording of the hearing, and a transcript of that recording prepared by the appellant's solicitor. The Federal Circuit Court based its judgment on that evidence. This Court has listened to that audio recording and read the transcript. Thus, we are in the same position as the Federal Circuit Court to assess the nature of the hearing. Consequently, it is convenient for this Court immediately to direct attention to what occurred in the Tribunal rather than to the reasons for judgment of the Federal Circuit Court. We now turn to the evidence of what occurred in the Tribunal. 27 It is convenient for the purpose of this discussion to divide the hearing into separate stages, by reference to the subject matter then under consideration. Letters of the alphabet have been added in the margins to the transcript and the letters identify the particular passage under discussion. 28 After some introductory remarks about the process to be undertaken, the Tribunal member asked the appellant about his results in the Masters course. The appellant said that he had failed three exams, but did not remember the exact marks obtained. 29 In stage one, the Tribunal member raised the subject of the appellant's attendance record which showed only 58% attendance for one of the subjects. The following exchange then occurred: MRT: Ok. For 1 of the classes with Mr Saka, Mohammad Saka, you've only attended 58%, according to this record. What do you say? Are they right about that? It says that you've only attended 58.33% in tutorial 2 with Mr Mohammad Saka. RA: That's correct. Yes Sir. MRT: 58% is a very low attendance rate. RA: Actually when I came here in Australia, I changed my location. I was came here to ATMC [Australian Technical & Management College] Geelong. After that, I applied to university, to move into MIT [Melbourne Institute of Technology] Melbourne. And the uni took 1-2 weeks to reply, to give me the permission to go into MIT. That's why I missed 2-3 classes in the starting, off Mr Saka and one more, [name inaudible]. MRT: Sorry. You were going to Melbourne Institute of Technology. RA: Yes Sir. MRT: At the Melbourne campus? RA: Yes Sir MRT: So why would you move to Geelong? RA: No. When I came here, I came here in ATMC Geelong. After that I apply- MRT: [inaudible] RAP: I came here at the Federation Uni. In the starting time. The campus was in Geelong, ATMC Geelong. MRT: Slow down because I need to understand. Which institution did you first enrol at, in Australia? RA: When I came here- [A] MRT: Please answer the question, which institution did you first enrol at in Australia? RA: ATMC. It comes into Fed Uni. MRT: Part of Federation University. RA: Yes Sir. MRT: and you are only did Master of Accounting course in 1 provider? From 1 provider? RA: Yes Sir. MRT: So you claim ATMC is part of Federation Uni. Were you- were they conducting classes in Geelong? RA: When I MRT: Were they conducting classes in Geelong? RA: [silence] [B] MRT: It's not a hard question to answer, and I interrupt because, in my view, is that you were going to answer a different question. As I said earlier, if I think you're being evasive, Mr Sharma, that can count against you. We are looking at the cancellation of your student visa. I expect you to be honest with me about your life. You know about your life. RA: Yes Sir. MRT: So, were they conducting classes in Geelong? RA: [silence] MRT: Is there some reason you're not answering? RA: [silence] MRT: Ok, no answer Agent: Excuse me Member, I think he didn't understand the question. MRT: Were you going to classes in Geelong? RA: No I did not go to any classes in Geelong MRT: Then did you move to Geelong? RA: My consultant in India told me that Geelong is near to the Melbourne. But when I came here, the letter Geelong is so far from here. I discuss everything with ATMC and Fed Uni, and they ask me if you want to do in the other campus of the Fed Uni, MIT. Then you have to provide a written application to the Federation University and you need to wait for the approval to Fed Uni, then I apply in Fed- [C] MRT: Slow down please. You're speaking too fast. I know you want to tell me this. And you have thought about this before but you speaking so fast, you're sounding a little rehearsed as well. I ask you to slow down. I need to understand. I don't understand why you [inaudible] move to Melbourne so quickly and what was preventing you from going to classes? It's up to you to explain to me, provided the evidence that says 58%, and I might say that warrants cancellation because he would never really- 60 something percent in another class, 66% with [inaudible name], I may say, look, you weren't a very good student, that's why you failed. You weren't working- you weren't studying hard. You say there was this movement between institutions or campuses? RA: Yes Sir. MRT: You haven't attended any classes in Geelong? RA: No Sir. I did not attend any classes in Geelong. MRT: I still don't see why you weren't able to get from Geelong to Melbourne at least for a couple of weeks on time, while you were making these arrangements. Why couldn't you do that? RA: That time, I was waiting for reply from Fed Uni. I already put my application the Fed Uni and they guys told me we will get back to you as soon as possible. And then I call to Fed Uni and ATMC, after that they take decision to my application and they gave me approval to move into MIT. After that I start my studies in MIT, in the meantime- [D] MRT: I'll ask you to slow down please. Do you have any evidence to support this? I just don't understand why you're not starting classes on the first day, while you've changed institutions. This is all not in your written submissions. Are you making it up? Are you telling me the truth? RA: Yes Sir. Everything is truth. MRT: So you say you were originally enrolled in Geelong? RA: Yes MRT: But you didn't start classes in Geelong? RA: No I didn't. MRT: Why couldn't you start classes with the institution which you enrolled in on the first occasion? RA: Before the classes I already put in the application. First I attend the English in ATMC campus, in Melbourne. I complete my English course. In the meantime, there is 1 month gap. In the meantime I put the application with Fed Uni, and the Fed Uni take some time to take decision. That's why I miss 1-2 weeks class in starting, the classes of Siva and [inaudible name]. [E] MRT: 1-2 weeks of class was it? Ok, you've heard my concern. [Emphasis and lettering added.] 30 That stage of the interview occurred toward the start of the hearing. The appellant was asked to explain why his attendance was low. He tried to explain that he originally enrolled at a Geelong campus. He said that he had been told by his consultant in India that Geelong was close to Melbourne. It is implicit in this evidence that he lived in Melbourne. He applied to change the venue of his course so that he could attend the Melbourne campus, presumably in order to reduce his travelling time. The appellant explained that the approval for the change took a little time. He said that in that period he did not start classes in Melbourne, and did not attend classes in Geelong. 31 At [A], the Tribunal member interrupted the appellant in the middle of the appellant's answer and suggested that the appellant was not answering the question. However, the appellant was attempting to do so. 32 The same occurred at [B] with the added warning by the Tribunal member that if the appellant was being evasive that might count against him. The migration agent proffered the view that the appellant had not understood the question. The Tribunal member did not respond to that suggestion. 33 Then at [C] the Tribunal member said that the appellant was sounding "a little rehearsed". There was no basis for that suggestion. The Tribunal member did not explain to the appellant why the Tribunal member had that reaction. 34 At [D] the Tribunal member questioned whether the appellant was telling the truth. That seems linked to the reference at [E] to the Tribunal member's concern, that is to say, the Tribunal member was left with the view at this stage of the interview that the appellant was not telling the truth. 35 It seems from [D] that the Tribunal member did not understand what the appellant was saying. That is confirmed by [15] of the reasons for decision in which the Tribunal member attempted to relate the evidence given by the appellant about his low attendance. The Tribunal member misinterpreted that evidence and concluded that it was unclear to the Tribunal. 36 The reason the Tribunal member did not understand what the appellant was saying was that he did not give him a chance to explain or seek to draw out an understanding by further questions. Rather, at [A], [B], [C] and [D] the Tribunal member drew adverse conclusions of evasion and rehearsal. Those observations were made at such an early stage of the appellant's attempt to explain the circumstances that the Tribunal member's statements might suggest to a reasonable lay observer that the Tribunal member had closed his mind to any explanation from the appellant concerning the poor attendance at the Masters course. 37 In stage 2 of the hearing the Tribunal member raised the question why the appellant stopped the Masters course. The stage commenced with the Tribunal member stating: MRT: … You stopped studying on the 9 July, says the PRISMS records, and I think your submission indicates that you did stop studying. Is that correct? 38 When asked why he stopped studying, the appellant said: RA: When I fail in my exams, I was in a stress. And I go to migration consultant- 39 The interview continued as follows: [F] RA: Then I discuss my case with them. There was a director, Mr Rahul Singh. He told me if you fail first exam, at that time I was working in a cafe as a part time for 12 hours in a week. I like cooking, that's why they ask me if you want to change your course, if you want to go into hospitality, you can put your file, it is easy for you, if you are failing so hard in accounting- MRT: I'll ask you to stop there. I want to make some notes. (pauses) [G] MRT: Now I'll ask you to think about this and respond slowly. Mr Sharma, you came to Australia with a Bachelor degree in Commerce. You came to study a Master of Professional Accounting. You weren't doing very well so what thought did you give to doing courses that were at least related to the course you came to do, such as a Diploma of Accounting or a Bachelor degree with an Accounting major? Because you didn't come to Australia just to do hospitality, did you? RA: Yes Sir MRT: What thought did you give to doing a course that's related? RA: when I fail in my exams, I was feeling so much stress and so-. Masters of Commerce is really hard for me. I was feeling so much stress and so much stuff in my course. And then I consult with the consultant, and he told me if you feeling- if you feel very hard for you, if you want, I can help you to change your course. That time I was working in a cafe- [H] MRT: I'll stop you there. Mr Sharma, you're being rehearsed. You've rehearsed all these words it seems to me and you're not answering the question. And that's not good. This is your life, and if I think you're making this up, you're trying to mislead me, I've got to make a decision as to the discretion to cancel your visa. So please, don't be evasive, it counts against you. Do you understand? Do you understand Mr Sharma? RA: Yes sir MRT: So I expect you to be able to answer questions about your own life. You don't have to answer, but again that may count against you. I've got to take this into consideration. You threw in your masters course and you start a hospitality course. That's a good reason on the face of it to cancel your visa. You didn't get a visa to do hospitality. Now I'm asking you, when you failed your masters subjects, you went to an agent It's your life, its [sic] not up to the agent to tell you what to do. So I'm asking a question that I would've thought you'd have an explanation for. What thought did you give to doing a related course to a Professional Accounting course. What thought did you give to do a Diploma of Accounting or a Bachelor of Business with an Accounting major? Did you give any thought? RA: When I fail masters, then I apply for the hospitality, but I didn't get permission to do Hospitality from the immigration department. And then I decide I want to start from the basics, that's why I choose the Bachelor of business in accounting. Its maintain my visa subclass as well - [I] MRT: Hang on. Hang on. You do understand that I've read the submissions and the delegate's decision. Mr Sharma, you enrolled in hospitality after the master of accounting. You didn't go straight to the bachelor of business. So are you attempting to mislead me? Again, I need to indicate to you this is an issue that concerns me. That you've got these rehearsed lines: When I finished my masters, I applied for hospitality. - You said "when I failed in my exams" -You've said this a number of times. What you haven't said is what thought you gave to doing a related business degree or diploma of accounting? What you've just said is: I was enrolled in a bachelor of accounting. Well, we all know that you did that after you received the NOICC. You didn't do that straight after in July 2014 did you? RA: Once I got the refusal- MRT: You're not answering the question Mr Sharma. It's not about when you got the refusal, its about why you decided to go to hospitality in the first place. I might decide, I might form the view that you never intended to complete a higher education course. That you've come to Australia for purposes other than obtaining a vocational qualification- a higher education that might assist your career. I might form the view that you're exploiting the system, that you came on the Streamlined Visa Process - this is all mentioned in the delegate's decision. You've had 2 migration agents, you've obviously, you said you spoken to more agents, so if you' re not answering the question again, it counts against you. So I'll ask it one more time. And I know its rude to keep asking the same question. Do you understand what I'm asking you? You tell me what I'm asking you. Tell me, what am l RA: You're asking me why I chose the hospitality course? MRT: No. I'm asking you what thought you gave to doing a Diploma of Accounting or a Bachelor of Business in Accounting, something related to the course you've just thrown in? Do you understand that question? RA: Why I chose Bachelor of Business Accounting? MRT: As I've said - Do you want me to explain once more, or do you not want to answer the question? RA: Can you repeat the question please? MRT: You failed your exams, you told me that. RA: Yes Sir. MRT: You thought I can't continue with this. You stopped studying. You stopped your enrolment. RA: Yes Sir. [J] MRT: Its [sic] not hard. This is all what you have told me. This is all in your submissions. At that time, when you said I can't do this, did you say "maybe I could do a Bachelor of Business? Maybe I can do a Diploma of Accounting? Maybe I could do something that's related to this to help me boost myself so that I can get back into this Masters degree program once I've got a bit more experience and a bit more understanding of the Australian system. Do you understand that? You're nodding your head. Tell me, what thought did you give about that? RA: [whispers to agent] [K] MRT: Mr Sharma can't answer it for you. I think you understand the question, and you're deciding not to answer it. I may form the view, as I've indicated to you, is open to me in the circumstances to consider that you never intended to complete the Masters of Professional Accounting. If you had, and were really dedicated to this vocation, I suggest you'd do something similar and you didn't. Did you want to respond to that? RA: [silence] MRT: We'll move on then. I've noted that you've been silent on this on a number of occasions, you've not answered the question on a number of occasions and you've been evasive. So I've attempted to explain this as best as I can, so I'll form a view about your credibility and your responses or your lack of responses to those questions. Mr Sharma? Agent: If you'll give me permission I can explain to- [L] MRT: No. I've asked him and I've attempted to do so on a number of times. You've indicated you understand the question, and I've asked a number of times. I've indicated to your client that perhaps it's rude if I continue to ask the same question. Agent: I understand. MRT: And I've still persisted - I've explained the context of the situation, I've expressed my concerns about the rehearsed responses and the failure to respond to the actual question. [Emphasis and lettering added.] 40 This stage of the hearing commenced with the Tribunal member opening the subject of why the appellant stopped studying the Masters course. The appellant replied by explaining the sequence of events which followed after he stopped the Masters course. At [F] he explained how he consulted a migration agent. The Tribunal member stopped him so the Tribunal member could make some notes. When the Tribunal member was ready to resume, the Tribunal member at [G], for the first time, asked the appellant whether he had given thought to enrolling in a course related to the Masters course. The appellant then returned to the chronology which he had started before the Tribunal member stopped him to take notes. 41 It is clear from what was said later that the appellant had not understood that the Tribunal member had changed direction from asking why the appellant had stopped studying to asking whether the appellant had given thought to doing a course related to the Masters course. That seems the reason why the appellant continued his answer by reference to the events which occurred following the time when he stopped studying for the Masters course. Yet, at [H], the Tribunal accused the appellant of rehearsing the story, not answering the question, and suggested that the appellant may be making it up and trying to mislead the Tribunal member. 42 The Tribunal member's reaction was without foundation. The appellant's words were not rehearsed, but were recapitulating the chronology which he had started before the Tribunal member interrupted him to take notes. 43 It was true that the appellant was not answering the newly formulated question raised by the Tribunal member, but the appellant's response called for some exploration of the issue by the Tribunal member rather than a blunt suggestion of fabrication or misleading. 44 The Tribunal member also said that it was not up to the migration agent to tell the appellant what to do. Implicit in this response was a rejection of a version of the facts which placed the responsibility for the change in course on the migration agent. In fact, the appellant had said that the migration agent had advised him that it was easy to change course. The appellant did not say that the migration agent told him what to do in the sense used by the Tribunal member, namely, that the migration agent effectively made the choice for the appellant. 45 The Tribunal member's response at [H] should be read in the light of what then happened at [I]. The Tribunal member accused the appellant of saying that he went straight from failing the Masters course to enrolling in the Bachelor of Accounting. The Tribunal member asked whether the appellant was trying to mislead him and said that he was concerned about that. The Tribunal member again said that the evidence given by the appellant were rehearsed lines. 46 However, it is clear from the appellant's statement immediately before the Tribunal member's intervention at [I] that the appellant was not saying that he applied for the Bachelors course immediately after failing the Masters course. He said "when I fail Masters then apply for the hospitality" [underlining added]. 47 The appellant then started to resume the chronology and the Tribunal member interrupted him and, after a series of dismissive comments, asked "Do you understand what I am asking you". The enquiring suggests the Tribunal member had become aware, at least by then, that the appellant had not understood the question. The appellant replied "You're asking me why I chose the hospitality course", thereby demonstrating that the appellant had not understood that the Tribunal member had wanted to know whether the appellant had, after failing the Masters course, considered doing any courses in the field of accounting. As a result of the appellant's response, the reasonable lay observer might regard the statements of the Tribunal member about the appellant evading questions and misleading the Tribunal member were not based on a proper assessment of the course of the interview. 48 The Tribunal member then, at [J], sought to explain that he wanted to know if the appellant had thought about doing a course in the field of accounting relating to the Masters course. The Tribunal member asked the appellant whether he understood the question. The Tribunal member did not ask the appellant to restate the question, but recorded on transcript that the appellant had nodded. 49 At [K], the Tribunal member expressed the view that the appellant had decided not to answer the question and had been evasive. The Tribunal member then, at [L], interrupted the migration agent who was seeking permission to explain to the appellant the nature of the question posed by the Tribunal member. The Tribunal member did not give that permission but said that the appellant had failed to answer the question. 50 There are a number of features of stage two which might demonstrate to a reasonable lay observer that the Tribunal member might not bring an open mind to the evidence of the appellant. First, the Tribunal member, at [H], suggested at a very early stage that the appellant might be making up the story and not answering the question when the appellant was still trying to explain the circumstances which the Tribunal member had introduced as the initial topic under discussion at [E]. Then, the Tribunal member made the incorrect allegation that the appellant had said that the migration agent had in effect dictated that the appellant would undertake the hospitality course and made the further incorrect allegation that the appellant had tried to mislead the Tribunal member by saying that he had enrolled in the Bachelor course immediately after failing the Masters course. Finally, the Tribunal member expressed the conclusion at [K] that the appellant had understood the question being asked when it was likely that he had not understood because, when asked to state the question being asked, he responded with a different question. These elements might indicate to a reasonable lay observer that the Tribunal member had a mind fixed in an unchangeable attitude adverse to the appellant. 51 In stage three, the Tribunal explored the question why the appellant enrolled in hospitality. At one point, the appellant addressed the role of the migration agent. The following exchange occurred: RA: Sir before I was misguided by my old migration agent. My only intention to do study in Australia. MRT: Yes you intention to study in Australia is? RA: Study to Australia- it- accounting. At that time I was totally depressed and stressed. He asked me if you cant [sic] do, you have this option. I ask 100 times to my consultant, 'is it possible?' Because my visa is granted for accounting'. And he show me the website and everything is mentioned there and he said 'you can read here. Everything is mentioned'. MRT: You could have done automotive studies, you could have done hairdressing. You could have done lots of different things. It doesn't really answer the question Mr Sharma. It's your life, it's your choice. You get advice from the Migration agent, he or she doesn't tell you what you want to do. You tell them what you want to do and say how is this possible. It's not 'totally misled'. Well I might form the view that that's not the case. You've gone on the website, you've had a look. Despite, you know, you've contacted the Department and [inaudible] the website. It's up to you to say what course you want to do, not an agent. What do you say about that? Do you understand? RA: Sorry sir? [Emphasis added.] 52 The Tribunal member did not seek any clarification of what the appellant meant when he said he was "misguided" by the migration agent, but rather expressed a view that the migration agent did not choose the course and consequently "It's not 'totally misled'". In this response, the Tribunal member suggested that the major responsibility for the decision to enrol in hospitality lay on the appellant. These remarks of the Tribunal member did not engage with the evidence of the appellant. Rather, they assumed that the appellant was proffering an excuse or exculpation that was to paint the appellant in a bad light as seeking to blame others for his predicament. The appellant did not say that the migration agent made the decision that the appellant enrol in hospitality, and the appellant did not say that he had been totally misled. The appellant said only that the migration agent advised him that he could change his course to the hospitality course, and that this guidance was not good advice. A reasonable lay observer might view the Tribunal member's assumption adverse to the appellant without a basis in his evidence as reflective of a mind closed to any position advanced by the appellant. 53 Then, in stage 4, the issue arose whether the appellant had applied for enrolment in the Bachelor of Accounting course before or after 5 September 2014, when he received the notice of intention to consider cancelling the 573 visa from the Department. That timing was potentially a matter which might be relevant to the genuineness of his intention to study in Australia. The discussion was as follows: MRT: Mr Sharma it's up to you. It may be a difficult question, but it was always a question that would have to be asked today. Last year, the Department cancelled your visa, you say its wrong and you are a genuine student, and we're here today to discuss it. You're silent on a number of issues, and you're [sic] wrote, you repeated sort of what you've learned and practised and rehearsed perhaps as answers and you've not given the answers to the questions I've asked. I'm trying to understand your motivation, why did you change to cookery? Is it just because you were working and you were told that it was possible? Is there any other reason? RA: There is no other reason I was working in hospitality field and I like that field that's why I was with them and I ask is it possible then I follow every rule of the immigration and I apply for my visa to get the permission from the immigration. And on 14 August I get the refusal from immigration and that time, I was, I was, I know my visa is grant for accounting, but I apply for permission: can I do the hospitality? And immigration did not give me the permission to do cookery. Then I decide if they give me permission to do accounting, and I'm feeling so hard in the masters I decided to start from the Bachelors. When I got the refusal from immigration I went to my education provider and they ask me we cannot take you back because enrolment is already finished, you have to wait for the November semester. And after that I look on internet for universities and the college. And after 1 month I get the NOlCC from the immigration department, then I called to the- [M] MRT: Hang on. This isn't how it works, surely. You didn't enrol in a Bachelor degree did you, before the NOICC was issued? RA: Sir I was- MRT: I want to ask you to really think about this, because again, if I form the view that you're not telling the truth that works against you. The Department said this very clearly and I have access to the computer records. So - Did you enrol in the Bachelor degree before or after you received the NOICC? RA: I've enrolled after the, when I got the NOICC [N] MRT: So you've been inconsistent. You're now telling me this when I've challenged you but just before your evidence- RA: Because I - [O] MRT: Is that you try to set history, you try to change history, you just told me that you enrolled in the Bachelors and later you received the NOICC [P] RA: No sir [Q] MRT: You DID tell me that. RA: [pause] RA: After the refusal I was waiting for the November semester because there is only the November intake I can start my study. MRT: you can start your study but you can enrol in your course a year in advance. It doesn't stop you enrolling in your course, that's the issue. That's one of the issues. RA: I went to college and they ask me you have to wait for the November intake. You can come one month before November and you can apply for that. [R] MRT: You don't understand the question I'm putting to you. You could have enrolled 6 months earlier. So again, you're perhaps trying to recast history. I put this issue to you: my concern is perhaps you're not being truthful or your evidence is not reliable. Because again, you seem to indicate I was ready to enrol in the Bachelor well before I received the NOICC. But that's not how it worked. My understanding is: in July you finished your enrolment. Your enrolment in the Masters ceased. RA: Yes, 29th of July. MRT: Then you told me you applied for the subclass 572 on the basis of cookery, yep? RA: Yes Sir. MRT: I don't think there is any dispute about this, it's in your submissions. And then you were refused. RA: Yes sir. MRT: And then you received a NOICC, and then you enrolled in a Bachelor of business. Do you want to tell me that you've tried to enrol in a Bachelor of business course in July 2014 then do so, but be very clear in your assertion and show me some evidence, because this seems to be recreating history! I mean I don't- Is that what you're saying, that you approached Kent Institute in July 2014, is that what you're telling me? I'm looking at your submission I note. RA: 29 July, my CoE was cancelled on 29 July. MRT: When did you first go and chat with Kent about enrolling in the Bachelor of Business? RA: I go there in first week of September. MRT: So that was after you received the NOICC? RA: Yes sir. [Emphasis and lettering added.] 54 At [M], the Tribunal member suggested that the appellant had said that he enrolled in the Bachelor of Accounting course before he received the notice of intention to consider cancelling the 573 visa and the Tribunal member warned the appellant in emphatic terms about not telling the truth. There was no basis for the Tribunal member's assertion that the appellant had said that he enrolled in the Bachelor of Accounting course before receiving the notice of intention to cancel the 573 visa. 55 The appellant then clarified that he enrolled after he got the notice of intention to cancel the 573 visa. That caused the Tribunal member to say, at [N], that the appellant had been inconsistent, and at [O], that the appellant had tried to change history. At [P], the appellant denied those suggestions. At [Q], the Tribunal member reasserted forcefully that the appellant had done so, and, at [R], the Tribunal member said that he had a concern that the appellant had not been truthful on the subject. 56 A reasonable lay observer who witnessed the exchange at stage 4 about the timing of the enrolment in the Bachelor of Accounting course in relation to the receipt of the notice of intention to consider cancelling the 573 visa, might conclude that the Tribunal member might not be open to persuasion to the appellant's claim because the Tribunal member expressed an almost immediate conclusion that the appellant had given inconsistent evidence when the appellant had not done so, and further, the Tribunal member had not allowed the appellant to finish his explanation or take time to explore the appellant's answers in order to ascertain what the appellant was saying. 57 In summary, the following features of the four stages of the hearing which have been described above are relevant to whether the hearing was affected by apprehended bias. 58 In the instances referred to, the Tribunal member interrupted the appellant before the appellant could finish or elaborate on his evidence. The appellant exhibited signs of not understanding what was being asked, and also exhibited some difficulty in expressing himself in English. Those matters called for particular attention by the Tribunal member to the need to draw out from the appellant what he was seeking to say. The Tribunal member did not do so. Instead, the Tribunal member rushed to judgements adverse to the appellant. Furthermore, the Tribunal member rejected the appellant's attempts to explain by delivering lengthy and complicated rebukes which failed to identify with sufficient simplicity and clarity in the circumstances the problem about which the Tribunal member was concerned. That process created an impression that the Tribunal was not interested in hearing what the appellant wanted to say, but rather was intent on determining the matter against the appellant in any circumstances. 59 These features are especially problematical on the several occasions in which the Tribunal member misapprehended the evidence of the appellant, namely, on the question of the reason for the appellant's initial non-attendance on the Masters course, the role of the appellant's migration agent, and the timing of the enrolment application for the Bachelor of Accounting course. On each of these subjects the Tribunal mistook the evidence given by the appellant. That was capable of being seen by a reasonable lay observer as demonstrating a mode of thought closed to the case which the appellant sought to make. 60 On the other hand, the reasonable lay observer would take into account several factors which might explain the way Tribunal member conducted the hearing. First, the circumstances of the appellant's situation suggested a fairly strong case for cancellation. There was no contest that the appellant was in breach of condition 8516 because his enrolment in the Masters course had been cancelled, and the change to the cookery course, on its face, suggested a lack of a genuine intention to study in the initially chosen area of accounting. Second, the presentation of the appellant in the hearing was marked by long silences and a fair degree of a hesitation in response to the questions asked by the Tribunal member. 61 However, neither of those circumstances would have dispelled the concern of the reasonable lay observer that the Tribunal member might not bring an open mind to the consideration of the application. Claims of apprehended bias can arise in a weak case because a decision maker might see the outcome as obvious and inevitable. But weak cases are not in an area of immunity from fair process. The protection from procedural unfairness applies equally to weak cases as to strong cases. 62 Similarly, the protection of the law applies equally where it is difficult for the decision maker to elicit answers from an applicant. Indeed, it is not an unexpected consequence of a hearing affected by apprehended bias that an applicant would clam up as a reaction to the attitude of a decision maker that nothing the applicant could say would change the decision maker's mind. In the present case, the reasonable lay observer might well regard the treatment given by the Tribunal member to the appellant as a reason why the appellant was not forthcoming in giving his evidence. In this regard it is noteworthy that in his evidence to the delegate, the appellant explained that the purpose of his study was to open a restaurant in India. The decision of the delegate explained that: Client stated that his dream is to open restaurant in his home country and his intention in coming here is to study and gain knowledge in the hospitality. As a result after discussing with his friends and family, he applied for Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality. He stated that the main intention of him coming to Australia was to pursue studies which could help him start his own restaurant in his home country. 63 That may have provided a link to the hospitality course had the appellant been able to develop his argument. The reasonable lay observer is presumed to have full knowledge of the circumstances in which the Tribunal hearing was conducted. One circumstance in this case was that the appellant provided a reason to the delegate for enrolling in the cookery course. The fact that he did not provide that reason to the Tribunal member might be regarded by the reasonable lay observer as an indication that the appellant was silenced by the views expressed by the Tribunal member, and thus as some evidence of apprehended bias. Further, a reasonably informed lay observer might conclude that the failure of the Tribunal member to raise that previous evidence which was arguably favourable to the appellant might reflect on an attitude unchangeably opposed to the appellant. In respect of each stage of the hearing, it was submitted on behalf of the Minister that the reasonable lay observer would allow for the possibility that the Tribunal was merely mistaken in its understanding of the appellant's responses to its questioning so as to provide an innocuous explanation for the manner in which the hearing progressed. An inference that the Tribunal might be mistaken should not, it was submitted, be equated with an inference that the Tribunal might have approached its task with a mind fixed against the applicant. 64 As has been made plain, the Tribunal did misapprehend the evidence given or attempted to be given by the applicant in critical respects during the hearing. The finding that the Tribunal was mistaken does not, however, provide an answer to the applicant's claim that the decision is affected by apprehended bias. 65 In determining whether the Tribunal member's conduct might be indicative of a mistaken but nonetheless open state of mind, a reasonable observer would form an impression based upon the accumulative effect of hearing as a whole, having regard to the number, timing and nature of the member's errors. The numerous instances in which the Tribunal member peremptorily shut down the applicant's evidence, when considered accumulatively, support a conclusion that a fair minded observer might reasonably apprehend that the Tribunal might be unwilling to listen to and deal with the evidence in fact given by the applicant. It is not necessary to demonstrate that the observer would reach a settled conclusion that there was an unwillingness to listen: it is sufficient to show that the observer might apprehend that the Tribunal had that state of mind. 66 Moreover, the observer may have regard not only to the words said by the Tribunal, but to the tone of voice in which the words are expressed. In that respect, the audio recording does not support an inference that the Tribunal was merely mistaken in its view of the evidence. To the contrary, the conclusion that a reasonable observer might apprehend bias on the part of the Tribunal member is only reinforced by the demeaning and dismissive manner in which the Tribunal dealt with the applicant, from a very early juncture in the hearing. 67 Some little light may also be thrown on the issue by noting that the hearing commenced at 10.06am. At 4.49 pm the Tribunal published the decision affirming the cancellation of the 573 visa. The reasons for that decision ran to 31 paragraphs. Such speed in the delivery on reasons which canvass a number of issues is unusual. The reasonable lay observer might regard that circumstance as providing some explanation for the way the interview was conducted. 68 In the result, the Federal Circuit Court erred in failing to hold that the hearing in this instance was affected by apprehended bias. Consequently, the appeal is allowed, the orders of the Federal Circuit Court are set aside, the decision of the Tribunal is set aside and the application remitted to the Administrative Appeals Tribunal to be determined in accordance with law. The Minister is to pay the appellant's costs of the appeal and of the application for review in the Federal Circuit Court. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Logan and Charlesworth.