Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
His Honour could not find any indication that the Third Tribunal's decision was affected by an apprehension of bias against the appellant. His Honour noted that the test for apprehended bias, as set out by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 , was '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' (at [27]), and suggested that, in view of its administrative and inquisitorial nature, the test might be formulated 'by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias' (at [28]). 12 His Honour had the advantage of listening to the sound recording of the Third Tribunal hearing conducted by Mr Short, and specifically addressed the appellant's written submissions, in which the appellant alleged that: (i) Mr Short "came to the hearing with a closed mind" because "he was only interested in determining that I was not a credible witness". (ii) Throughout the hearing Mr Short "had extremely long pauses", which "only added to my nervousness". (iii) Mr Short was "very aggressive" in exchanges with Ms Stotz at one point of the hearing concerning the [appellant's] evidence given at earlier hearings about the official position he held in the Awami League. He spoke to Ms Stotz "in a very rude, dismissive voice". He "became distracted by his dislike of Ms Stotz, rather than focusing on my case itself". The [appellant] was ignored, when Mr Short "shouted" at Ms Stotz and criticised her preparation for the hearing. (iv) At a later point, Mr Short "shouted" at the [appellant] when drawing his attention to a document to which he referred. (v) A lay person would have felt that Mr Short's questioning of the [appellant] about the [appellant's] knowledge of the Awami League's official objectives and its flag was "unfair and intimidatory" because "the Member would have known that I only participated in Awami League politics at a village level". (vi) At a later point, Mr Short again "began berating my representative", and asked her questions "in a very menacing tone of voice". (vii) ... "[Mr Short] left his chair and proceeded towards Ms Stotz, shaking his forefinger at her. It appeared that he was going to strike her. My witnesses and I were very worried and frightened". (viii) Mr Short listened to the applicant's two witnesses "but did not ask questions of them", so that "it appeared that he was not really interested in what they had to say, or how their evidence was significant to my case". (ix) The [Third] Tribunal did not take into account that the [appellant] came from a different social and cultural environment and might experience bewilderment and anxiety. Nor did it take into account that the [appellant's] educational, social and cultural background might affect the manner in which he provided his evidence. 13 His Honour noted that while the Third Tribunal arrived at an adverse conclusion on credibility in its ultimate decision, with reference to logical and supported reasons which had previously been put to the appellant, this did not suggest that there was any predetermination of that outcome. The Federal Magistrate could not find anything in Mr Short's questioning of the appellant at the hearing, nor in the subsequent s 424A invitation for comments, nor in his ultimate statement of reasons, which indicated that he prematurely closed his mind to a proper assessment of the appellant's refugee claims. Accordingly, his Honour did not consider that a fair-minded lay observer might have formed any reasonable apprehension about this, taking into account the Tribunal's usual inquisitorial procedures which were referred to by the High Court in Ex parte H [2001] HCA 28 ; 179 ALR 425. 14 Further, his Honour did not accept that there was any behaviour by Mr Short towards Ms Stotz in the course of this exchange which should be characterised as 'very aggressive', nor as unreasonably 'rude' or 'dismissive'. Further, his Honour did not accept that Mr Short's concern about Ms Stotz's competence as a migration agent became a distraction to Mr Short at this point, or any other point, such that it prevented him from properly conducting the hearing. 15 In relation to the appellant's submission that '[Mr Short] left his chair and proceeded towards Ms Stotz, shaking his forefinger at her. It appeared that he was going to strike her. My witnesses and I were very worried and frightened', his Honour noted that there was no evidence before the court to support this accusation. His Honour held that as the accusation was not foreshadowed prior to the hearing, and the respondents were unable to respond to it without adequate prior notification. His Honour refused to allow evidence from a Ms Peterson to be adduced in support of that submission.