Judge blasts tribunal member Joseph Francis over Indian stereotypes

A federal judge has blasted an Administrative Appeals Tribunal member for adhering to serious stereotypes about Indian chefs.

AAT member Joseph Francis.

A Federal Circuit and Family Court judge has blasted an Administrative Appeals Tribunal member for adhering to serious stereotypes about Indian chefs when handling a student visa ­application of a man seeking to come to Australia to study cooking.

Judge Douglas Humphreys criticised tribunal member Joseph Francis after the latter accused Indian national Anmol Jaggi of trying to misuse the application to remain in Australia, and insisted that “99 per cent of the cooks in India don’t come here and study”.

Judge Humphreys overturned Mr Francis’s decision to refuse Mr Jaggi the visa after finding the member “did not approach the matter with an open mind”.

“The statement that 99 per cent of the cooks in India don’t come (to Australia) to study could be regarded as a generalisation and that the tribunal member was not being prepared to consider the matter on the evidence before him; rather, his decision was being made on the basis of a generalisation as to the path of study followed by all Indian cooks,” the judgment says.

“This error was compounded by the comments ... where the member said ‘I do nine of these a week, predominantly in exactly the same situation. I can see through it.’ ”

Mr Jaggi, 22, first arrived in Australia in April 2023 on a visitor visa. A few months later he applied for a student visa, which was refused by a delegate to the Immigration Minister. He applied for the AAT, which was replaced by the Administrative Review Tribunal late last year, to review the decision but his application was refused by Mr Francis in May.

Mr Francis criticised Mr Jaggi’s migration agent for failing to provide a Genuine Temporary Entrant statement explaining Mr Jaggi’s legitimate reasons for study. Mr Francis later accepted this was due to a “genuine mistake” on behalf of the agent.

During the initial hearing, Mr Francis appeared to believe Mr Jaggi misled the Home Affairs department to gain entry to Australia. “In my decision, which I’m most likely to affirm, you can imagine, I’m going to say that I’m far from satisfied considering he wanted to be allegedly a cook since he was 17,” Mr Francis said at the time.

“He knew when he departed India with a visitor visa. It was his intention to apply for student visa after he’d arrived. He misled the Department of Home Affairs in the application for a visitor visa.”

Judge Humphreys found Mr Francis made the “unwise” statement to the tribunal that he was “highly likely” to uphold the delegate’s decision without having first heard all the evidence.

“At the very commencement of the hearing, the tribunal member indicated he was highly likely to affirm the decision under review,” Judge Humphreys wrote in his judgment. “That was before he had heard any of the material by way of evidence from the applicant, noting that this is material that should have been available in the GTE statement. Such a statement was unwise.”

Judge Humphreys said the court recognised the “legitimate” concerns of Mr Francis relating to the failures of the migration agent, and rejected an argument that Mr Francis’s tone showed “contempt” for Mr Jaggi.

However he eventually concluded Mr Francis “did not approach the matter with an open mind; the court is of the view that the criticisms of the representative spilled over into the assessment of the applicant”.

“Given the nature of commentary set out above, the court is satisfied that the claim of appre­hended bias is regrettably made out,” the judgment says.

“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 apprehended bias is made out.”