Case: Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: considered
Given the role consigned to the Tribunal by the Migration Act 1958 and the nature of the case of apprehended bias that the applicant sought to make, the following passage from the judgment of Allsop J (as his Honour then was), Moore and Tamberlin JJ agreeing, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 is, subject to one necessary qualification arising from the particulars of challenge in the present case, apposite: "17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality." (Internal footnotes omitted). 49 An apprehended bias case has, as Hayne J noted in Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 564, [185] , "several distinct elements at its roots": "First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case." In an apprehended bias case a conclusion that it is objectively possible that these elements are present is sufficient to establish a want of procedural fairness grounded in an apprehension that the decision maker was biased. That conclusion does not carry with it the additional conclusion that the decision-maker was in fact biased. It is whether there is such an objectively discernable possibility, not the thought processes of the decision-maker, which must be the focus of inquiry. 50 There is an inherent tension between a finding on the one hand that "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia ," (emphasis added) and, on the other that " The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner , protection visa applicant] shows that he is a Falun Gong practitioner" (emphasis added). 51 The Tribunal had before it direct evidence from Miss Byers, which it did not find unworthy of credit, to the effect that: (a) the applicant had come to her on referral from a known Falun Gong practitioner; (b) the referrer had successfully satisfied the Tribunal (differently constituted) that he was indeed a Falun Gong practitioner; (c) in Falun Gong claimant related cases, she only acted for those referred by a Falun Gong practitioner, not those who came "directly off the street". 52 It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488 , 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth". 53 Recalling, at the level of objective possibility, the three elements described by Hayne J in Jia Legeng at 564, what emerges, in my opinion, is the possibility that the Tribunal had a pre-conceived view that the applicant was not a person who feared persecution on the basis of adherence to the practice of Falun Gong, applied that preconception to the question of whether the applicant satisfied the criteria for the grant of a protection visa and did so notwithstanding that there was evidence, at least worthy, prima facie , of credit, that the applicant not only was , not "apparently was", associated with an Australian resident Falun Gong practitioner but had been referred by that person to a solicitor and migration agent whose integrity the Tribunal had no reason to doubt, and who professed to take "Falun Gong" cases only on referral from known Falun Gong practitioners, for the purpose of seeking from Australia the very same refuge from a claimed fear of persecution as the Tribunal itself had regarded as well founded in the case of that referrer. 54 That objective possibility is not removed by regard to the way in which the Tribunal dealt with: (a) the Applicant's knowledge of the Falun Gong movement; (b) the reason advanced by the Applicant for desisting from practising Falun Gong exercises in a park in Australia; (c) the Hospital Document; (d) the Labour Reform Camp Document. 55 The Tribunal was faced with a man of rudimentary education who it found knew the basic tenets of Falun Gong, its founder, its principal text and its five exercises, who claimed benefit from their practice, who claimed to have been prevented by official persecution from readily associating in China with fellow adherents but did so at an asserted price of beating and imprisonment and who it found was unable to engage in a detailed philosophical discussion about the movement.