Case: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; [2001] 179 ALR 425
Outcome: cited
Submissions were put to me as to the precise test which applies in a case of bias. The appellant contended for a passage in the decision of the High Court of Australia in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; [2001] 179 ALR 425 at page 434 as the appropriate test. That test is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided". The conclusions I have arrived at apply if that is the correct test. However, whatever the correct test is, I still arrive at the same conclusions. 15 Another issue raised before me was whether the question of bias could be raised in this appeal, it having not been raised before the Federal Magistrate. In the light of my decision on the substance of the matter, I do not need to deal with this question. 16 The actual issues relating to bias are framed in grounds in the amended notice of appeal which are reproduced in the appellant's written submissions. Lest it should be thought by my summary approach to the issues that I have not considered the detail of those matters, I will now refer to the particular grounds, which are as follows: 1. The decision of the Federal Magistrate should be set aside as there was a reasonable apprehension of bias on the part of the Federal Magistrate in the way her Honour conducted the hearing. 2. The decision of the Federal Magistrate should be set aside as her Honour was biased against the Applicant's solicitor advocate. 17 The bias claims formed part only of grounds associated with the conduct of the hearing. There were two further grounds related to procedural fairness. They were as follows: 3. The decision of the Federal Magistrate should be set aside as her Honour denied procedural fairness to the Applicant's solicitor advocate. 4. The decision of the Federal Magistrate should be set aside as there was a reasonable apprehension of serious negligence on the part of the Federal Magistrate in the way her Honour failed to prepare herself to conduct the hearing that might have caused a reasonable lay observer to conclude that the solicitor advocate's client that is the Appellant (a) might not get justice and/or (b) might not have his case properly dealt with by the Magistrate. Further, this also caused apprehension on the part of the Appellant's solicitor advocate that her Honour was not familiar with the case and thus did not fully grasp the issues and therefore the Appellant's case was not properly inquired into. 18 Although ground 4 is described in terms of serious negligence, when he was putting submissions to me, the appellant's solicitor said that this ground should be really understood as a further ground of denial of procedural fairness. For much the same reason as I have found that there is no basis for a claim of bias, it seems to me that both of these grounds should fail. 19 Ground 4 particularly raises the issue of the Federal Magistrate having read the wrong decision of the Refugee Review Tribunal. I note, however, that her Honour specifically said to the parties that they should proceed on this basis, by which she must have been understood to have been saying that they should address her on the basis that at the time of the hearing she was not familiar with the terms of the reasons of the Refugee Review Tribunal. I also note that her Honour reserved her decision so that she had ample opportunity to read the reasons before giving judgment. 20 It is not, to my mind, any basis for a breach of procedural fairness to say that a judge has not read or fully understood the case to be put prior to coming on the bench. Indeed, my career at the bar extends back far enough to remember a time when that was usually the moment when judicial officers first learnt about a case that was before them. 21 It follows from the above that the four grounds relating to the conduct of the trial must fail. 22 I turn now to four grounds relating to the decision of the Refugee Review Tribunal. As my introductory remarks foreshadowed, it seems to me that this is a case in which, although the applicant had the opportunity to put a case on the facts a number of times to different bodies, namely the departmental delegate and to two differently constituted Refugee Review Tribunals, the reality is that he failed on these occasions to make out his case. I frankly think that the present grounds of appeal are really an attempt to cavil with the decisions of the Refugee Review Tribunal on the facts. If that is the case, then it is not surprising if they are unsuccessful. Nevertheless, I will address the particular claims that are made.