Actual Bias
8 First, it is to be noted that it was not submitted to his Honour that this was a case of actual bias patent on the conduct of the Tribunal. It was said that to discern actual bias it was necessary to have regard to an implication to that effect that arose out of conduct of the Tribunal which involved the commission of procedural errors, namely, the failure of the Tribunal to provide a competent interpreter and the failure of the Tribunal to recognise that the appellant had not been accorded a right in that regard required to be observed by the Act.
9 Actual bias on the part of an administrative body necessarily involves different considerations from those which apply to judicial proceedings. The difference has been elaborated by Hayne J in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [178] - [187] (Gleeson CJ, Gummow J concurring at [100]):
"Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.
Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not "[descend] into the arena and…have his vision clouded by the dust of the conflict". The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.
Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7 Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.
The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be "appropriate and adapted to the circumstances of the particular case". What is appropriate when decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body. Ministerial decision-making is different again.
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…it is necessary to consider more closely what is meant by "bias" and "apprehension of bias". "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures". This matter concerns only bias by prejudgment and I confine my reasons to that subject. The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered.
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Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has 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.
Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:
"…preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded." [emphasis added] R v London County Council; Re Empire Theatre (1894) 71 LT 638 at 639 per Charles J.
Allegations of apprehended bias through prejudgment are often dealt with similarly.
In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an "expert" tribunal assumes that this will be done. Conferring power on a minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker." (Footnotes omitted)
10 In the instant case the argument of actual bias put to his Honour was as follows:
"The [appellant's] case was put on the basis that an examination of the transcript of evidence before the Tribunal and its reasons for decision (and the documents which were before the Tribunal) showed these two legal errors of inadequate interpretation and actual bias separately, but that they were also strongly related to each other.
The [appellant] submitted that each finding of credit by the Tribunal showed either actual bias, interpreting errors, or both. When the matter was considered as a whole, the overwhelming inference, so it was put, was that the Tribunal considered the case from a pre-conceived opinion, subconsciously affected by the previous findings against the [appellant's] credit and in doing so had ignored the difficulty in communication. The Tribunal had effectively found on matters of credit, so the [appellant] submitted, on the basis of what it considered to be prior inconsistent statements.
The [appellant] contended that on closer examination, the [appellant's] earlier statements were not in fact inconsistent, or altered in any relevant degree, nor were the substantive claims added to. The [appellant] claimed that interpreting errors infected most of the findings of credit."
11 The premise of the appellant's argument discloses that the contention that the decision of the Tribunal was affected by actual bias cannot succeed. The appellant complains that the Tribunal acted on mistakes in the interpretation of the appellant's evidence to conclude that the appellant was not credible and that his account could not be relied upon. The argument is predicated upon the Tribunal receiving, addressing, and acting upon the evidence or material presented to it. That the Tribunal was unaware that the material may have misrepresented the statements of the appellant does not support a contention that by reason of a closed mind and actual prejudgment the Tribunal did not, and would not, consider any material put to the Tribunal on behalf of the appellant. More was required to establish this ground than to assert that the view of the Tribunal that the appellant's difficulty in presenting his case coherently permitted it to conclude that the appellant's account should not be accepted, indicated a less than even-handed approach by the Tribunal to the appellant's case.
12 It follows the ground of appeal alleging the decision of the Tribunal was affected by actual bias must fail.
13 The appellant did not seek to rely on "apprehension of bias" arising from the circumstances referred to, no doubt concluding that the only ground for review available in that regard was that provided by s 476(1)(f) of the Act for review of a decision of the Tribunal affected by actual bias.
14 If judicial review for "apprehended bias" on the part of an administrative tribunal is wholly based on breach of the rules of natural justice, reliance upon it in an application for review in this Court on the basis of "jurisdictional error" would seem to be precluded by s 476(2) of the Act. (See: Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 per McHugh, Gummow, and Hayne JJ at [80]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5]).