Case: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: discussed
The High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 discussed the test for apprehended bias in administrative proceedings. In their joint judgment at 434-435, Gleeson CJ, Gaudron and Gummow JJ said: "The test is for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the question of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of 'a fair-minded lay observer' when, as is the case with the tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias 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. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof." As their Honours noted, in a case such as the present, in considering the matter of apprehended bias, the non-curial and inquisitorial nature of the proceeding is to be borne in mind. 41 For the reasons I am about to state, no case of apprehended bias is made out. The Tribunal's letter of 23 December 2005 indicated that the Tribunal was dissatisfied with Erskine Rodan's conduct as the appellant's representative, not that it had taken an adverse view of the appellant's claims. I would not regard the Tribunal's direct communication with Ms Tong as amounting to evidence of prejudgment on the Tribunal's part, as the appellant suggested at one stage: cf with s 379G(4) which permits the Tribunal to communicate orally with a review applicant providing it gives the "authorised recipient" notice of the communication. There is no other indication of prejudgment on the Tribunal's part prior to the hearing. 42 At the hearing, the Tribunal member was irritated, even annoyed, by the appellant's representative's conduct, especially in interrupting him. The transcript shows that the Tribunal member and the appellant's representative disagreed about various matters relating to the conduct of the hearing. Relatively early in the hearing, the representative expressed her disquiet about the Tribunal member's questions to Mr Chey concerning Ms Tong's family. The Tribunal member asked her to refrain "from interrupting my questioning. I'm asking those questions for a reason." When the representative persisted, the member said: "I'm not going to respond to that. I'm in the middle of questioning." When she reiterated her disquiet, the Tribunal member said: "The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficult enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further." This led to the following exchange: "Representative: I think you need to think very carefully about the questions and whether they're relevant to the marriage. Tribunal member: The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficulty enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further---- Representative: If you continue to ask those questions that are not relevant I am going to interrupt, because I think it's inappropriate. Tribunal member: It's not your position to gainsay the appropriateness or otherwise of the tribunal's questions. If you, at the end of the hearing, feel that there's been a jurisdictional error then you would be aware of the avenues open to you. Representative: Absolutely. Tribunal member: So that would be the appropriate course of action, but to interrupt me whenever you form the view that I'm asking an irrelevant question is, in my view, inappropriate. Representative: I do that very, very rarely, but this is about Channy's family and there are particular complications that you're not aware of and I think you need to question her. Tribunal member: Again, you're (indistinct) question to me, or you're indicating that I shouldn't be asking certain questions that I should be putting to another witness. Now, that to me is stepping beyond your role, quite clearly, as a representative. Your role as a representative is to assist the --- ... Tribunal member: It's in your perception it's assisting me. That's not my perception. In fact, my perception is it's hindering me and I'll ask you to refrain from doing that. Representative: I'm going to say what I believe needs to be said and if you want to do what ever you like about that you can do so. Tribunal member: You would be aware of the provisions under the act that go to the role of the representative."