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AAT member stereotypes Indians in concerning comments
A member with the Administrative Appeals Tribunal had his visa decision tossed out after he made several concerning statements, including a stereotypical claim about Indian chefs.
Naomi Neilson
A judgment to affirm a decision of the Minister for Immigration to not grant 22-year-old Indian native, Anmol Jaggi, a visa was overturned in the Federal Circuit and Family Court of Australia (FCFCOA) due to comments “regrettably” made by tribunal member, Joseph Francis.
“It may be that a different tribunal member, with the same evidence before them, would have arrived at the same ultimate conclusion.
“However, given the comments made by the tribunal member in this matter, the court is satisfied that the ground of apprehend bias is made out,” Justice Douglas Humphreys said in his recent judgment.
In his May decision, Francis accused Jaggi of having a “preconceived plan” to mislead the Department of Home Affairs by arriving in Australia on a visitor visa only to apply for a student visa once he was onshore. Jaggi was represented by Northam Lawyers and barrister Sergio Zanotti Stagliorio in the court matter. They did not represent Jaggi at the Tribunal.
Francis said Jaggi was not a genuine temporary entrant (GTE), despite accepting he has family living in Australia, has access to better pay conditions compared to India, and had evidence he was enrolled in a commercial cookery course for some six months.
Right at the commencement of the hearing, Francis indicted he was already “highly likely” to affirm the minister’s decision because Jaggi’s former migration agent - who was not connected to Northam Lawyers - had failed to lodge a GTE statement.
While it was accepted Francis rightly had “significant issues with the conduct” of the migration agent – and particularly his failure to lodge the correct GTE statement – the exchange over this material supported the FCFCOA finding an apprehension of bias.
The first statement came after Francis questioned Jaggi about the research he did into cooking courses.
“Is the course of study or a similar course available in his home country or region? I know it is. I know that 99 per cent of the cooks in India don’t come here and study, or didn’t go off shore to study okay. Failing on the very first point,” Francis said.
After further questioning about Jaggi’s family and work prospects, Francis accused his representative of “coaching him on a pathway”.
“I don’t think he has a genuine interest in cooking,” Francis said.
“I know how it works … you know that. I do nine of these a week, predominantly in exactly the same situation. I can see through it.”
Justice Humphreys said given the first statements could be ”regarded as a generalisation”, Francis was not prepared to consider the matter on the evidence before him but instead “on the basis of a generalisation as to the path of study followed by all Indian cooks”.
This was compounded by the “nine of these a week” comment.
Justice Humphreys tossed out an argument that Francis' tone of voice conveyed contempt, finding no evidence in this to demonstrate a fair-minded observer might infer there was nothing Jaggi could give in evidence that might change the member’s mind about his claim.
The FCFCOA was also alive to “legitimate” concerns voiced by Francis, including the failures by the former migration agent.
The matter has been remitted to the Administrative Review Tribunal and the minister was ordered to pay costs in the sum of $8,371.30.
The case is: Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267 (22 November 2024)
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
