Legal Update: Apprehended Bias in Migration Decisions

Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267

Case Summary

In a significant Federal Circuit and Family Court decision handed down on 22 November 2024, the Court upheld an application for judicial review of an Administrative Appeals Tribunal (AAT) decision that had refused a student visa (Subclass 500) application. The case was heard by Judge D Humphreys in Perth.

The decision provides a detailed examination of apprehended bias in migration tribunals, particularly in the context of GTE (Genuine Temporary Entrant) assessments for student visa applicants. This case is especially notable for its thorough analysis of how a tribunal member's comments and conduct during a hearing can create a reasonable apprehension of bias.

The Court's reasoning reinforces the principle that apprehended bias constitutes jurisdictional error without requiring proof of materiality - an important consideration for practitioners handling judicial review applications.

Key Facts

• The applicant, a 22-year-old Indian citizen named Anmol Jaggi, applied for a student visa (subclass 500) to undertake a Certificate III in Commercial Cookery after arriving in Australia on a visitor visa on 27 April 2023
• His student visa application was lodged on 30 August 2023 and refused by a delegate on 15 November 2023
• The refusal was primarily based on the applicant failing to satisfy clause 500.212A of schedule 2 to the Migration Regulations 1994 (Cth) - the Genuine Temporary Entrant (GTE) criterion
• Despite being enrolled in his course since 7 October 2023 with six months of documented good attendance and progress, the delegate was not satisfied he was a genuine student
• A significant issue was that the applicant's migration agent had mistakenly uploaded another person's GTE statement with the application
• The AAT affirmed the delegate's decision on 8 May 2024 (with written reasons provided on 29 May 2024), but the Federal Circuit Court found the Tribunal's process was affected by apprehended bias

Detailed Analysis of the Tribunal Hearing

The Federal Circuit Court had access to the complete transcript and audio recording of the Tribunal hearing, which revealed several problematic aspects of the proceedings:

1. At the very beginning of the hearing, before hearing any substantive evidence from the applicant, the Tribunal member stated he was "highly likely to affirm" the previous decision
2. The member made concerning generalizations, stating that "99% of the cooks in India don't come here [to Australia] and study," suggesting prejudgment of the applicant's case
3. The member told the applicant's migration agent: "I know how it works... I do nine of these a week, predominantly in exactly the same situation. I can see through it"
4. The member threatened to refer the migration agent to the Office of the Migration Agents Registration Authority (OMARA) for alleged malpractice
5. The member made statements suggesting he believed the applicant had "misled the Department of Home Affairs in the application for a visitor visa" and that the applicant had "someone who's been coaching him on a pathway"
6. Throughout the hearing, the member appeared to hold the absence of a formal GTE statement against the applicant, despite having the opportunity to assess GTE through oral evidence

The Court found that while the Tribunal member's concerns about the migration agent's conduct were legitimate, these criticisms "spilled over into the assessment of the applicant" in a way that suggested apprehended bias.

Key Legal Principles and Their Application

The case provides an excellent illustration of several important legal principles:

1. The "double might" test for apprehended bias: The Court applied the established test from CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, which asks "whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided"
2. Stereotyping as a form of bias: The Court recognized that making generalizations about applicants from particular countries or backgrounds can constitute apprehended bias
3. Materiality of bias: Citing the recent High Court decision in LPDT v Minister for Immigration [2024] HCA 12, the Court confirmed that were apprehended bias is established, it constitutes jurisdictional error without the need to prove materiality - meaning the applicant did not need to demonstrate that the outcome would have been different without the bias
4. Inquisitorial role versus prejudgment: The Court drew a distinction between legitimate vigorous questioning (appropriate for the Tribunal's inquisitorial role) and prejudgment of a case before hearing all evidence
5. Separation of criticisms: The Court noted that while criticism of a migration agent may be warranted, decision-makers must not allow these concerns to affect their assessment of the applicant's case on its merits

Outcome and Court Orders

The Court made the following orders:

1. Upheld the application for judicial review
2. Issued a writ of certiorari quashing the decision of the Administrative Appeals Tribunal made on 15 November 2023
3. Issued a writ of mandamus directed to the Administrative Review Tribunal requiring it to determine the applicant's case according to law
4. Ordered the First Respondent (Minister) to pay the Applicant's costs fixed in the sum of $8,371.30

It's worth noting that the Court referred to the "Administrative Review Tribunal" rather than the "Administrative Appeals Tribunal" in its orders, reflecting the recent transition between these tribunals.

Implications for Migration Practice

This case offers several important lessons for visa applicants, migration agents, and immigration lawyers:

1. Procedural fairness is fundamental: Even where substantive issues exist in an application (such as a missing GTE statement), applicants are entitled to have their cases considered on their merits without prejudgment
2. The importance of complete applications: While the bias issue was determinative in this case, the initial problems arose from incomplete documentation - specifically the absence of a proper GTE statement
3. Review options for procedural failures: Applicants who believe their cases were not considered fairly have grounds for judicial review, even if their underlying visa applications had potential weaknesses
4. Transcripts and recordings as evidence: The Court's access to both written transcripts and audio recordings of the Tribunal hearing was crucial in establishing the apprehended bias claim - highlighting the importance of these records
5. Financial implications: The costs awarded ($8,371.30) demonstrate that successful judicial review can lead to recovery of legal expenses

For visa applicants who believe procedural fairness has been compromised in their case, this decision supports the availability of judicial review as a remedy.

Other Grounds of Review

While the Court's finding on apprehended bias was sufficient to resolve the case, the applicant had also raised two other grounds of review:

1. Failure to consider discretionary visa conditions: The applicant argued that the Tribunal failed to consider an argument about potentially imposing condition 8534 (which would limit the holder from being granted certain substantive visas while in Australia) as a way to address concerns about the applicant's genuine temporary intentions
2. Misapplication of GTE requirements: The applicant contended that the Tribunal erroneously treated the provision of a written "genuine temporary entrant statement" as a mandatory requirement for the grant of a student visa, rather than considering all available evidence including oral testimony

The Court did not need to determine these grounds given its finding on apprehended bias, but they represent interesting additional arguments that could be relevant in other student visa cases.

This case summary is provided for informational purposes only and does not constitute legal advice. For personalized assistance with your migration matter, please contact Bansal Lawyers Melbourne for a consultation.