Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507, Gleeson CJ and Gummow J accepted as "orthodox" the test for actual bias that requires demonstration of a pre-existing state of mind which disables the decision-maker from undertaking or renders him or her unwilling to undertake any or any proper evaluation of the materials which are relevant to the decision to be made (at [72] read with [36]). Their Honours observed (at [71]): Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. 65 Neither the conduct of the review nor the sending of the s 424A letter, nor the second Tribunal's reasons for decision, nor all of those things taken together, allow the conclusion to be drawn that the second Tribunal approached its task with a closed mind. It was entitled to have regard, as it did, to the claims made by the appellant before the first Tribunal as well as the materials put before it. The appellant was given every opportunity to put her case to the second Tribunal. Her advisor was invited to speak and gave a substantial oral submission. It might rightly be said that the s 424A letter raised matters which could properly have been put at the review. It might have been preferable if that had been done. For some applicants however, a challenging approach by the Tribunal at review has itself been seen as an indicator of bias rather than a proper disposition of the inquisitorial function. To the extent that the s 424A letter gave the appellant an opportunity to comment upon the Tribunal's provisional views rather than new information relevant to the appellant, it may not have been necessary. In any event there was no basis in the materials before her Honour for the erection of the structure of impropriety propounded by counsel for the appellant. Ground 1(a) fails. 66 Counsel for the appellant in written submissions contended that the second Tribunal had failed to afford the appellant the opportunity to give evidence and present arguments "relating to the issues arising in relation to the decision under review". The thrust of this argument was that the second Tribunal, by putting its questions relevant to credibility in the s 424A letter, did not afford the appellant the opportunity in oral responses to demonstrate her credibility. Counsel put it thus in the written submissions (at [69]): Credibility is very critical issue in refugee matters. The main thing that affected the credibility was the Tribunal's disbelief in the events allged to have happened. That is an issue that arose in the matter but no opportunity was given to deal with this matter during the hearing. It would been appropriate to question the Appellant if the Tribunal did not belive her or question the witness. This was avoided, we submit deliberately. [sic] 67 Section 425 requires, in the circumstances in which it applies, that an applicant for review be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That does not impose a duty upon the Tribunal to cross examine the applicant on claims which it may have difficulty in accepting. There was no failure to comply with s 425 of the Act in this case. 68 This ground rested upon the assertion that the second Tribunal had formed an opinion that the appellant's claims were fraudulent based on the first Tribunal's decision. It had applied its opinion to the appellant's case and not given fresh consideration to the application for review. The short duration of the hearing, 45 minutes, compared with what was said to be a usual average time of between 2 and 2 1/2 hours, allegedly indicated that the Tribunal "did not want to spend much time during the hearing as it has prejudged the critical issues" [sic]. 69 An apprehension of bias was said to arise from the fact that a fair minded lay observer would wonder why the second Tribunal would invite the appellant and her sister to a hearing but not ask them about the main incidents alleged to have happened to the appellant before holding that all were fabricated. The way in which it dealt with her advisor's request in relation to the credibility of the appellant would also, it was said, have caused apprehension of bias when taken in combination with the decision record. 70 In my opinion, however, a reading of the transcript of the proceedings and of the express opportunities given to the appellant and to her advisor to put to the second Tribunal anything they wanted to say would have prevented any apprehension of bias arising. Nor does the sending of the s 424A letter or the terms of the reasons for decision give rise to such an apprehension.