In 2015, the Applicant was convicted of stalking and fined for common assault (it was unclear if that was a conviction or not). In his 2016, 2017 and 2018 visa applications the question about “any convictions” was answered “no”. However, in his 2019 application for a 485 visa the 2015 conviction was disclosed and this led inexorably to a refusal on the basis of PIC 4020 (false and misleading information had been provided). This is despite the usual arguments about the agent left the info off the earlier applications and “if I was dishonest I wouldn’t have disclosed it in 2019” type arguments.
However, things got off to a bad start in the AAT when the Member accused the Applicant of “playing games” by requesting an interpreter. It was one of those cases where the Applicant did speak good enough english (to meet the 485 requirements) but felt insecure about appearing in the Tribunal without one. Anyway things went downhill from there and 35 minutes later ex-tempore reasons were delivered (there were later written reasons) affirming the decision of the delegate.
The ground of review in the circuit court was “A reasonable bystander might apprehend – from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it – that the Tribunal might not have brought an open mind to its task“. That ground ultimately succeeded in the Full Court (see Chen v Minister [2022] FCAFC 41).
If nothing else the case is a good template for how to conduct an apprehended bias case. Judges were convinced to listen to the recording of AAT hearing and there was lots of argument about the “use of an intimidating, loud and/or rude, and incredulous or belittling tone“. Even though the matter has been remitted there is another 4020 battle ahead for this applicant.
Creative commons acknowledgment for the photograph.
