Case: NADH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264
Outcome: considered
The reasons for judgment of the learned Federal Magistrate record that his Honour read a transcript of the hearing before the Tribunal and also listened to an audio tape of the entire hearing. His Honour, as the appellants accept, correctly identified the test for apprehended bias by reference to the reasons for judgment of Allsop J, with whom Moore and Tamberlin JJ agreed, in NADH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264. The critical passages from the reasons for judgment of Allsop J are set out in [9] below. As those passages make clear, the test for present purposes is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision. 5 At various points in his reasons for judgment the Federal Magistrate asked himself questions in terms that, as the appellants submit, suggest that he departed from the proper test. For example, at one point his Honour asked: 'At the end of the hearing with [sc. would] the fair-minded observer think that the applicant was before a Tribunal whose mind was open to persuasion?' At another he observed: 'I am not left with a sense that the fair-minded lay observer would take from these passages a view that the Tribunal's mind was not open to persuasion.' 6 After carefully reviewing the manner in which the Tribunal member conducted the hearing, the Federal Magistrate, while critical of the Tribunal member, concluded that her conduct did not give rise 'to the possibility of apprehended bias'. 9 The critical passages from the reasons for judgment of Allsop J in NADH v MIMIA referred to above are the following: '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 ... 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 ... Secondly, 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 ... 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. 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.' (citations omitted)