Case: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982
Outcome: applied
The decision made by the Tribunal was administrative, not judicial, in character. The governing principle is not in doubt, nor was it below, as the reasons for judgment of the learned Federal Magistrate reveal. An authoritative statement of principle is to be found in the judgment of the Full Court of the High Court (Gleeson CJ, Gaudron and Gummow JJ) in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 , at 983, [5]: It was held in Re Refugee Review Tribunal; Ex Parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover ... regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. (Internal footnote references omitted). 22 And later in that same case: 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: Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR at 990, [27] [28] (Again, internal footnote references omitted) 23 The test then is one of objective possibility. 24 Applying that test to the circumstances of this case, I have reached the conclusion that the learned Federal Magistrate erred in dismissing the challenge to the Tribunal's decision. The explanation of that conclusion requires an analysis in some detail of the nature of the claim for a protection visa made by the Applicant, of how the Tribunal dealt with that claim and of the reasons for judgment below. 25 At the heart of the Applicant's visa claim was his asserted adherence to the tenets and practices of the Falun Gong movement, his consequential experiences in China since July 1999 when that movement became the focus of what he stated was a campaign by the public security authorities to eradicate it and an asserted, consequential fear of persecution in the event of his return to China. He related his experiences in his visa application and related supporting materials as well as in oral evidence before the Tribunal. 26 Two of these alleged experiences in particular should be noted.