Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1901 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the FCA. The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) CLR 507. The question on appeal is whether the FMC decision is affected by some legal, factual or other error : Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] . Section 28(1)(a) and (b) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination. 20 In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test 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 resolution 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 will be done or 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. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.