Case: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: cited
In Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings') McHugh J stated the test for apprehended bias in relation to administrative decision-making at [68] by effectively paraphrasing what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re RRT; Ex parte H at [27]-[28] above. His Honour said: '68 The rules of natural justice require that any decision of a Minister that affects a person's rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively.' (Footnote omitted) 20 McHugh J continued at [70] by saying: '70 While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. ...' 21 I would respectfully adopt as the applicable test for apprehension of bias in respect of the conduct of proceedings before the Tribunal, upon the hearing of an application for judicial review of the ultimate decision of the Tribunal, the test as summarised by McHugh J in Hot Holdings . 22 In addressing the content of the test and its application to the factual situation in the present case, the following matters and issues need to be considered: (a) The Tribunal must be seen to be independent and impartial. (b) The ultimate issue for consideration and in respect of which the Tribunal member had to be satisfied or not satisfied, was whether owing to well-founded fear of being persecuted for reasons of political opinion, the applicant was outside the People's Republic of China and owing to such fear unwilling to avail himself of the protection of the People's Republic of China. (c) The Tribunal member was called upon to address the ultimate issue in circumstances where the applicant had previously given evidence before the Tribunal differently constituted and in circumstances where two earlier decisions had been quashed as a result of applications for judicial review. (d) In order for the Tribunal member to be satisfied that the applicant before him was a non-citizen in Australia, who satisfied the definition of a refugee in Article 1A of the Convention, it was for the applicant to advance whatever evidence and arguments he wished to advance to make out his claim. The applicant had to get his case across the line, there being no responsibility on the Tribunal member to prompt or stimulate the applicant's presentation of his case. (e) The Tribunal member was required to be fair. (f) Notwithstanding the obligation resting upon the applicant to get his case for refugee status across the line, the Tribunal member was required to explore those aspects of the applicant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. (g) It was open to the Tribunal member to vigorously test the evidence presented by the applicant. In so doing, questioning could be more vigorous than might be seen to be appropriate if undertaken by a judge in adversarial court proceedings. (h) Given that the Tribunal hearing had concluded and a decision had been reached, the apprehension of bias test did not require any conclusions to be reached about the factors that actually influenced the decision as made. (i) The applicant had been represented at the hearing before the Tribunal in respect of which the apprehension of bias claim had been made. (j) Were constant challenges made to the truthfulness or plausibility of the applicant's account of the events upon which he relied? (k) Was the applicant's evidence constantly interrupted? If so, might the Tribunal member, by his interruptions, have conveyed a preconceived view that the applicant's account of the events on which his claim to refugee status was based had been fabricated such that there was nothing that the applicant could say or do which might change that view? (l) Viewed objectively, might the testing by the Tribunal member of the applicant's evidence be seen to have become overbearing or intimidatory? (m) If there was a possibility that the Tribunal member might not bring an impartial mind to the questions which he had to decide, was that possibility, objectively assessed, real as opposed to remote? (n) In the circumstances, might a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings and processes of the Tribunal, including the Tribunal member's role, have reasonably apprehended that the Tribunal member might not bring an impartial mind to the questions which he had to decide? 23 The appellant in the proceedings presently before the Court is a married man who was born in Fujian in China on 27 April 1975. On 3 August 2004 he lodged an Application for a Protection (Class XA) visa in which he claimed that he had arrived in Australia on 19 June 2004, travelling on a Taiwanese passport that had been issued on 28 August 2000. His claim to refugee status was recorded in a statutory declaration made on 2 August 2004 which was lodged with the then Department of Immigration &amp; Multicultural &amp; Indigenous Affairs with his application for a protection visa. He claimed that he was outside the country of his nationality, the People's Republic of China, and unwilling to avail himself of the protection of that country owing to a fear, said to be well-founded, of being persecuted for reasons of political opinion. The relevant political opinion was said to have been expressed by the appellant in respect of the lack of regard or respect and protection for self-employed truck drivers' basic human rights. It was said that the appellant had been involved in organising demonstrations and in endeavouring to form unions, an activity which could lead to criminal charges and imprisonment. 24 The appellant claimed that around the middle of June 2003 he, as a self-employed owner/driver, was given a job to deliver some building materials from Hui'an County to a construction site in Sanming City. The appellant claimed to have a friend, a Mr Li, who had a greater need for money than he did, given that he was supporting his aged mother who was then suffering from a serious illness. In the circumstances he transferred the opportunity to his friend, Mr Li, to perform the work of delivering the relevant building materials from Hui'an County to the construction site in Sanming City. The appellant claimed that his friend, Mr Li, suffered a serious traffic accident whilst doing so which rendered him a paraplegic or quadriplegic. In his statutory declaration the appellant said: 'Unexpectedly, Mr Li's small truck fell into a ravine in the mountainous area while he tried to dodge a big truck which had overtaken him illegally.' 25 The appellant asserted that Mr Li had been accompanied by an assistant driver who jumped free from the truck before the accident. That assistant driver was said to have been able to identify the driver of the big truck, who caused the accident, as being a Mr Jin. The appellant claimed that Mr Jin was an illegal driver who did not hold a driver's licence. However it was said that Mr Jin's father was a senior government official in Sanming City of Fujian Province with a very powerful background who used his wide contacts in the government and particularly in the traffic administrative section of the Public Security Bureau (PSB), to conceal the truth. The appellant contended that the PSB and relevant authorities unfairly decided that the accident was caused simply as a result of Mr Li failing to abide by the traffic laws. The appellant claimed that Mr Jin escaped from legal punishment and Mr Li received not one cent by way of compensation. This circumstance is said to have led the appellant to seek compensation for Mr Li and a fair go for self-employed drivers.