Case: Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606 
Outcome: cited
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. 22 The appellant may have had a sense of unease that his s 424A response letter was not properly considered because it was received by the RRT on the same day as the RRT's decision and that the decision was accordingly predetermined. However, more than a sense of disquiet is required to make good a claim of apprehended bias. Even a reasonable apprehension of bias must be "firmly established": Forge . 23 There is no basis, let alone a firm basis, to make good a claim of apprehended bias on the part of the RRT. The appellant's submissions are based upon a misconception of the RRT and its processes. 24 First, as the history of the proceedings before the RRT demonstrates (see [14] to [18] above), the RRT heard the appellant's application for review of the delegate's decision over two days. Secondly, at the conclusion of that hearing, the RRT prepared a detailed s 424 letter. A s 424A letter is not produced in a vacuum. So much is made clear by the express words of s 424A(1) of the Act. It provides, so far as is relevant: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it.