Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: referred to
The respondent opposes leave primarily on the basis that the proposed grounds have no reasonable prospects of success. A subsidiary basis for opposition based on comments made in the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [29] concerning the significance of lapse of time is to the following effect. Given the member's views were published more than a year after the decision in question, it cannot be determined what the member's views may have been at the time of decision. This latter contention is not, in my view, of particular consequence. The article was published in a law journal in a foreign country. Inevitably that process would have involved delay. It is equally clear from the structure of the article, the sources relied upon, and the nature of the debate with which it was engaging, that time was spent in its research and writing. It is improbable that its central thesis was not entertained by the Tribunal member, if only in rudimentary form, at the time when the appellant's review application was determined. 38 Given the view I take on the question of leave, it is necessary to refer in a little detail to the burden of the article itself (which runs to thirty-five pages). There are two comments I should make about it by way of preface. The first is that the article's concern is not with torture at large (i.e. the infliction of severe pain, suffering or torment as such). Rather it is with a particular sub-species of State-sanctioned or officially authorised torture (i.e. the State-sanctioned infliction of bodily pain etc for the purpose of persuading a person to provide information to avert a grave risk of loss of life). I note in passing that the definitions of "torture" in The Oxford English Dictionary , vol XVIII, 278 (2 nd ed) reflect the above differences to the extent of recognising that torture may or may not be inflicted purposively and with State authority. 39 The second comment is that the background to the article are the contemporary prevalence of State-sanctioned torture in many countries and its use by States for interrogative purposes. 43 First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".