Case: NADH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 328 ; 214 ALR 264
Outcome: applied
The task of the Tribunal is also to discharge its functions in a manner both free from bias and in a manner which is seen to be free from bias. The principles to be applied when considering an allegation as to apprehended bias are clear; difficulty, however, is frequently encountered in the application of those principles to the facts in issue. In NADH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264 Allsop J (with whom Moore and Tamberlin JJ agreed) summarised the general test as follows: [14] The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision... His Honour thereafter went on to consider the approach to be adopted when the decision-maker was an administrative tribunal such as the Refugee Review Tribunal. His Honour continued: [17] To identify the obligation of the tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, while it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof... [18] Second, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias... [19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court.... The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. [20] At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power. [21] The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct "objectified" through the prism of what a fair-minded and informed observer would reasonably apprehend ... It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality. 9 It is considered that the Tribunal in the present proceedings as reconstituted conducted its review in such a manner as to attract a reasonable apprehension of bias. It was accepted by the Respondent Minister that if that conclusion was reached, the Tribunal's decision was vitiated by jurisdictional error. 10 This conclusion is reached upon the basis of a review of the transcript of the proceedings before the Tribunal as reconstituted. The transcript records a number of exchanges soundly basing a conclusion as to apprehended bias. 13 It is considered that there is in the present proceedings a reasonable apprehension that the Tribunal exhibited a " predisposition ... towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question ": NADH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs , supra , at [20]. 14 This conclusion is only reinforced by the refusal of the Tribunal to adjourn or postpone its hearing to enable a witness to be called on behalf of the First Appellant, a Pastor David Boyd. This witness, it is understood, was proposed to be called to give evidence as to the First Appellant's " Christian commitment and also the situation for Christians in Nepal ". The request for the adjournment was made on 24 July 2006 and dates provided as to the time when he would be unavailable to attend. The Tribunal unquestionably has a discretionary power to adjourn proceedings: Migration Act 1958 (Cth), s 427(1)(b). Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which " is fair, just, economical, informal and quick. " Procedural decisions of tribunals such as the Refugee Review Tribunal should not be lightly disturbed. Of present concern is not the decision in fact made to refuse to adjourn the proceedings; of present concern is that the refusal to do so only goes to reinforce an apprehension as to a lack of impartiality. Of itself, the refusal to adjourn the proceedings may have assumed little relevance; in context, however, it is yet a further factual basis upon which an informed bystander may question the impartiality of the Tribunal. The evidence sought to be called was not of marginal relevance but a matter of central relevance to the issues sought to be pursued by the Appellants. 15 A review of the transcript also provides a basis for an informed observer concluding that the Tribunal was becoming anxious to confine the explanation being provided by the First Appellant or indeed concerned as to the manner in which it was approaching its own task. Thus, for example, at one point the Tribunal was questioning the First Appellant as to why she did not seek an explanation from her migration agent and her statement that " there was no point in making an application ". The following exchange thereafter took place: MR HARDY: But you didn't ask him why. INTERPRETER: He just told me that - - - MR HARDY: But you didn't ask him why. So did this conversation take place? Because this is about your life and death here, and you didn't ask him why? INTERPRETER: What I told why I couldn't get protection, because he said to me that in because no-one can get it because your case will fail. If you apply to the skilled migration you've got right age and I don't I found a number on my point that can I can get from my age because of my cooking skill, and if I've got one sponsorer it will be easy for you to get permanent resident here. So you don't need to apply for protection visa. After that I came to Lockman. I told him, because I was advised that to apply for migration, skilled migration, if I applied for a refugee application it would be unsuccessful. After that, then, we went again to understand further and we went, four people, Lina, Lockman, my husband and myself. We asked and we asked and we asked to apply for protection but again we were advised that not to apply for because of unsuccessful. Then I was advised that he needed one sponsor that he could help my case. After that we came back home. He called me on the phone I mean, he phoned me and then talk about that, that I found a sponsor to help you, and asked to go to Parramatta, that he had made an appointment to see the man, and then there is a restaurant that you can go to a restaurant where we met him. After that, Lockman took me over there. Then we talk about it and he said yes. The owner of the restaurant agreed that he could help me. After that, we left Pawar. After that, when we understood that he said that we already applied, he had already applied, and you could and you had been successful. It's been applied. And (indistinct) you could go, and you could return within month. At that time, Lockman Limbu was (indistinct). After that, my husband went. After two or three weeks after he left the application was rejected but the Pawar didn't tell us, and visa was not in my passport at that time and it was going to be expired. When I went in they said to me that I have the letter, it is rejected, and the letter there was only two days left, and what you have to do, and he told me that whatever he could, do it. MR HARDY: Can you wind up this a little bit soon? Yes, go on. The following exchange also took place: MR HARDY: No, I can't do anything with that. No, no, I can't do anything with that. How can it be that they're in gaol and it's not on the record? Where does your investigation come from? INTERPRETER: When I heard the can I speak some I would like the applicant to repeat the because it's very long, so - - - MR HARDY: Yes. INTERPRETER: - - - I didn't understand to yes. MR HARDY: You're speaking very, very fast, okay? Maybe I am too. Yes. But also, the interpreter is. So it might have become it might have just got a little bit jammed, yes.