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Immigration Daily News Apprehended Bias: How to Know Your Client Has Been Railroaded!Australian Immigration Daily News
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Apprehended Bias: How to Know Your Client Has Been Railroaded!
Do you think there is little you can do to help your client at a hearing before the Administrative Appeals Tribunal?
Do you think that your role as a migration agent or lawyer at the Tribunal amounts to being nothing more than a “bump on a log” as a result of section 366A(2) of the Migration Act – which provides that:
“The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be able to do so”?
In light of section 366A(2), do you think that there is little point in your accompanying your client to the hearing before the Tribunal, and that the proper advise is to tell them to save the money that they would otherwise pay you for attending with them?
Do you think that a claim that the Tribunal was biased against your client can never ever succeed?
If you think so, then there’s a case that was handed down earlier this week from the Federal Circuit Court, by Judge McNab, that tells us: “Think again”!: Singh & Ors v Minister for Immigration & Anor (2016) FCCA 2663. Or as we would say back home in grand Brooklyn, New York, if you think so, then “Have I got a case for you!!!!”
What was this case all about?
It involved an application by a citizen of India for a 457 visa.
As part of the application process, the applicant provided the Department with an employment reference letter from a previous employer. Officers of the Department carried out a site visit at the business of the claimed owner of the former employer. During this site visit, the owner allegedly told the Department officers that he did not recognise the 457 visa applicant either by his photograph or his name, that he had never employed the applicant in his business, and he had signed reference letters on behalf of the applicant without knowing their contents, that he had signed the reference letters only as a favour to a person he knew, and that he disavowed responsibility for the reference letters.
On the basis of the information allegedly gathered during this site visit, the Department concluded that the applicant had provided the Department with a bogus document and/or with information that was false or misleading in a material particular and that the applicant had therefore failed to satisfy Public Interest Criterion 4020. So, the Department proceeded to refuse the 457 visa application.
The applicant then sought review before the Tribunal. The Tribunal, like the Department, concluded that the applicant had not worked for the business that had provided the reference letters, that he had given false or misleading information, and that the refusal of his application should be affirmed.
Was the case over at this point? Was there nothing more to be done at this point other than to cry about the outcome, and then drown one’s sorrows by eating a tub of ice cream?
No! There was a remedy from the Federal Circuit Court, which concluded that the Tribunal had committed jurisdictional error, and that the case should therefore be sent back to the Tribunal for re-determination by a different Tribunal member.
So in what respect did the Federal Circuit Court had gone wrong, or “off the tracks”, so to speak?
The Court found that the Tribunal had been guilty of “apprehended bias”.
How?
Well, first the Court observed that there’s no problem with apprehended bias if the Tribunal expresses a preliminary view of the case that is unfavourable to the applicant.
Indeed, the Court in Singh made reference to the decision of the Federal Court in the case of Minister for Immigration and Citizenship v MZXPA that, as a matter of course, the Tribunal would not invite applicants to hearings if it did not reach a preliminary view on the material before it that is unfavourable to the applicant.
So where is the line where it becomes clearer that the Tribunal is guilty of apprehended bias?
When, before the Tribunal has even heard all the evidence, it goes beyond stating a preliminary view, and expresses instead a concluded view in relation to matters that are fundamentally important to the application. Or when the Tribunal member makes statements that indicate she/he has made up her/his mind on the fundamental issues prior to the conclusion of the hearing. Or when the statements made by the Tribunal member go beyond simply “testing” the applicant’s evidence and express conclusions and findings.
In particular, what did Judge McNab consider had gone wrong at the Tribunal hearing in this case? What exactly did the Tribunal member say that resulted in a finding of apprehended bias?
Here are some examples: In the context of an application made by the applicant for an adjournment, the Member said to the applicant that: “I asked you to try to account for my credibility concerns. And you weren’t able to do that to my satisfaction…..at this point I consider you not to be a credible witness…You have in effect poisoned the well…..I’ve got unresolved concerns about your credibility and your wife’s credibility and your alleged former employer in India’s credibility.”
While these additional statements were not specifically referred to by Judge McNab as evidence of apprehended violence, they certainly could have contributed to creating an impression by the Court that the Tribunal had not been fair and objective in the conduct of the hearing, and had not made up its mind before the hearing was concluded: During the hearing, the Member said to the applicant’s migration agent:
- “I don’t know what you’re talking about (representative)….I’m cautioning you”
- “It’s not a bogus document, (representative)…you haven’t been listening for the last two and a half hours”
- “This is really getting beyond a joke”
The moral of this story: there will be occasions in the life of every migration agent, and every lawyer, where it will be clear that the hearing officer is not approaching the case with an open mind and is hostile for whatever reason to your client’s case. This may be apparent from the Tribunal member’s demeanor, the tone of her/his remarks, etc. What is critical in these circumstances is to take the matter further after the hearing, beyond saying that “the client got a raw deal” or “that hearing was totally totally unfair” and to note from the transcript exactly what the Tribunal member may have said that is indicative of apprehended bias.
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Comments
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Wednesday, 02 November 2016Michael - great article, as usual - I think that often we don't know how to deal with the kind of apprehended bias we are often confronted with (subtly or not ) and not just at the level of the tribunal but essentially at the primary level which leads us to the tribunal...
I have a question and perhaps you can shine some light on the matter: as you know, overseas posts are often utilised by the Department to check up on the bona fides of work references, etc. Time and time again, locally engaged Australian High Commission staff are mostly the ones who check on these, particularly through phone interviews or attempts to establish whether a workplace exists by ringing phone numbers provided, etc.
I've recently worked through a case with a colleague regarding such a situation whereby local 'officers' contacted the workplace to inquire after the applicant, without identifying their role and the reason for the call, other than within the context of knowing if person X worked there and could they indicate what they did and how long they had employed, as what, etc.
Only at the end of the process did the officer involved in this case identified the nature of the call and their role. As a result, a number of assumptions were made by this officer and were communicated to the relevant section in Australia which proceeded to send a s57 immi justice letter to 'please explain'. A time-frame was given and within this time-frame, clarifications and evidence from overseas had to be sought, etc.
By the time the information was sent addressing the issues raised, either the day before or on the day it was due, with notice, the relevant section in Australia refused the visa on PIC 4020 grounds. NOW...the same way as with the above example - which is about the tribunal, not at the primary level - could it not be argued that the results communicated to the Department in Australia by the Overseas post local employee were 'poisoned' by the assumptions made at that level? and as such, the Ministerial delegate already had an apprehended bias with regards to the client, to the point that even by having received the information within the given timeframe, the decision was swift (the next day) which could certainly indicate he/she had already made up their mind... (or had adverse information other than the one stated on its pls explain letter). I'd like to hear other people's views about this because, unfortunately, it is happening quite often, and PIC 4020 is at the forefront of badly written references or signatures by people whom the local person didn't think had the authority to sign or simply by not being able to remember the exact wages figure by an administrative person or the detailed contents of the reference given 6 months ago.
The assumption that the applicant must be lying, surely is based on their own bias and the actions that follow which are not necessarily about confirming the applicant's evidence but probing it to find fault. These actions are not consistent with being professional and having an open mind, both of which are in contradiction to Policy and Procedure and extremely unfair to the applicant in this case,as there is no opportunity to appeal the refusal and now has a dark mark and a 3 year exclusion (for good measure) in their file and over their heads, respectively.
Any comments from you Michael and fellow colleagues out there are greatly appreciated.
Cheers,
Bea -
Wednesday, 02 November 2016
Michael - great article, as usual and lots to think about. I have a related question and perhaps you can shine some light on the matter: as you know, overseas posts are often utilised by the Department to check up on the bona fides of work references, etc. Time and time again, locally engaged Australian High Commission staff members are mostly the ones who check on these, particularly through phone interviews or attempts to establish whether a workplace exists or the person actually worked there.
I've recently worked through a case with a colleague regarding such a situation whereby a local 'officer' contacted the workplace to inquire after the applicant, without identifying himself as such or the reason for the call, other than within the context of knowing if person X worked there and could they indicate what they did and how long they had employed, as what, etc.
Only at the end of the process did the officer involved in this case indicated who he was and the nature of the call. As a result, a number of assumptions were made by this officer (the fact finding probe didn’t go well for the applicant – not because his documents were not true, but because of the answers obtained by the officer led him to assume that the explanations received were less than truthful – for example, why the administrative assistant could not explain whether he was working fr the company or was merely contracted or why was the reference letter signed by a project manager and not the general manager, and the like.
This was communicated to the relevant section in Australia which proceeded to send a s57 immi justice letter to 'please explain'. A time-frame was given and during that time, clarification and supporting evidence from overseas were obtained, etc.
By the time the information was sent addressing the issues raised, either the day before or on the day it was due, with previous notice, the relevant section in Australia refused the visa on PIC 4020 ground the very next morning, in agreement with the overseas post ‘findings’. NOW in the same vein as with the your example, Michael, - which is about the tribunal, not at the primary level - could it not be argued that the overseas post officer's own biased 'poisoned' the outcome arrived at by the Ministerial delegate? And in doing so, promoted an apprehended bias with regards to the client? Why do I think this? because of the promptness of the decision the very next day and a rushed decision at that, given that there were date inaccuracies in the refusal letter; it was all terribly expedient.
I'd like to hear other people's views and/or similar experiences about this because unfortunately, more often than not, PIC 4020 is always at the forefront of decision maker’s mind due to less-than-grammatically-correct written references or because in the course of the call, the company person cannot remember the exact wages figure or the detailed contents of the reference letter provide 6 month earlier or simply having a new staff member unable to recite who works where doing what and do they remember Mr X ever working there?.
The default position is that the applicant must be lying and therefore the task is to uncover this lie; isn’t this approach biased? These 'fact finding' calls, often made at inopportune times by a representative of a foreign government about an employee (or a sponsored partner) is not your daily type of call and can be confronting; after all, in many cultures, having a foreign government representative calling you about an employee or a partner is a serious matter so of course one feels compelled to oblige.
The way that many of these calls are managed are not always consistent with being professional and having an open mind, both of which are required in order to make effective and fair decisions. In this case, there is no opportunity for the applicant to appeal the refusal (and perhaps test the presence of apprehended biased referred to in the article), so they now have a dark mark and a 3-year exclusion period in their file and over their heads, respectively.
Any comments from you, Michael, and fellow colleagues appreciated.
Cheers,
Immigration blog
I love migration alliance articles!!! Sooo helpful. Even little mistakes such as here 'apprehended violence' rather than 'apprehended bias' make them more interesting, especially for those who are based in Victoria, don't have apprehended violence orders here and need to think a bit harder to realise where it comes from.