Australian Immigration Daily News

How can you tell if your client has not been given a fair hearing by the Administrative Appeals Tribunal?

Or to put the question in “lawyer’s terms”, how can you tell if the Tribunal member has been guilty of bias, and has therefore fallen into jurisdictional error, so you can get the case sent back to the Tribunal for another, hopefully fairer, hearing?

Well, like a lot of things in life, it may all be a matter of degree – sometimes bias can smack you in the face like a bucket of ice water, and sometimes it may be more difficult to identify.

But the question of bias does come up not infrequently. In fact it did come up in a case that came before the Federal Circuit Court just last week  - Singh & Anor v Minister for Immigration & Anor  (2017) FCCA 247 (16 February 2017). 

The case provides an opportunity for us to look again at the legal standards for determining when bias exists, and therefore to refresh our understanding of when it would be appropriate, after a failed application for merits review win the Tribunal, to take the case up to the Federal Circuit Court.

The Singh case involved the cancellation of a student visa.  The visa was cancelled on the basis that the visa holder had not been enrolled in a registered course of study for a period of about 6 months. It was the visa holder’s claim that he had been unable to attend his place of study because he was unwell, and because his wife had encountered complications during her pregnancy.

The application for merits review of the cancellation was unsuccessful before the Tribunal.

When the case came before the FCC, the visa holder claimed that the Tribunal hearing had been affected by bias, allegedly because the Tribunal member had conducted the hearing in a manner that “exhibited incredulity, cynicism and a confrontational exchange or was otherwise intimidating”.

So where do the boundaries of apprehended bias lie? How can you know if the Tribunal member has crossed the line? How aggressively can a Tribunal member question a witness? How openly can a Tribunal member express doubts about the credibility of a witness?

As noted in Singh, the basic test for detecting when apprehended bias is present was stated by the High Court in the case of Re Refugee Review Tribunal; Ex Parte H (2001) HCA 28.

In that High Court case, the test was formulated in the following terms: Would a fair-minded lay (non-lawyer) observer who is properly informed as to the nature of the proceedings and the matters that are in dispute apprehend that the Tribunal member might not bring an impartial mind to the determination of the case?

As it was put in the Full Court case of SZRUI, there is a “balance”, or a “dividing line” between the Tribunal member’s undertaking an “inquisitorial role” and being free to question, or even vigorously test, an account of facts, on the one hand, and, on the other, a case where the decision maker has made up her or his mind before the entirety of the evidence has been put forward.

So what are the indications that the dividing line has been crossed?

In Re Refugee Tribunal; Ex Part H the High Court suggested that in circumstances where the Tribunal member constantly interrupts an applicant’s evidence, and constantly challenges the truthfulness and plausibility of the applicant’s account, to the point that it is obvious that there is nothing that an applicant could say or do to change the Tribunal’s preconceived view, then a finding of apprehended bias may be made.

So, in Re Refugee Review Tribunal; Ex Part H the Tribunal member made these sorts of statements:

“…you don’t seem to be able to say anything that’s the least bit convincing, do you?”

“….I find you to be a most unconvincing witness…about all I believe from you is your name and address.”

“I’ve found your evidence to be unconvincing. It’s an improbable story and you’ve told it very badly.”

Other clues to when apprehended bias might be found to exist?

According to the cases reviewed by the Court in Singh, they are as follows:

Sustained displays or ill temper may reflect apprehended bias, while “momentary outbursts” that pass may not; likewise, displays of impatience and irritation, even if not justified, using harsh tones, using a raised voice, asking questions in a disbelieving manner, expressing doubts about an applicant’s case in an emphatic manner, and interrupting may not amount to apprehended bias.

Also, where the Tribunal member has been “polite” at least for the most part (!) and has asked “open” questions, looking for answers to matters such as “who what where when” then it will be quite difficult to show that there has been apprehended bias.

So, it all boils down to exactly what happened at the Tribunal and what the transcript of the hearing reveals about how the Tribunal member conducted her/himself.

But it needs to be kept in mind, as suggested by what has been said above, that demonstrating apprehended bias ain’t an easy thing to do!

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