FINDINGS
22 The principles relating to bias are well-established. Bias will be made out if it shown that the Tribunal member was actually biased, or if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson (2000) 201 CLR 488 at [11]; Vakauta v Kelly (1989) 167 CLR 568 at 575; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-63.
23 The principles relating to bias have been considered by the Full Court of the Federal Court specifically in relation to migration appeals in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [42]ff. At [43]-[48], the Court observed:
'First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].
Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ").'
24 Proceedings before an inquisitorial tribunal are necessarily of a different nature to proceedings before a Court: see Re Refugee Review Tribunal and Anor; Ex parte H and Anor (2001) 75 ALJR 982 at [5]; Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [4]. The Tribunal member in the present case was entitled to, and indeed obliged to, put adverse information to an application for a protection visa. As noted by Nicholls FM:
'It is quite understandable that some apparent rejection of a claim (particularly, and even, as it may derive from a considered and reasoned but nonetheless adverse view of the applicant's credibility) can be seen as an indicator of bias or bad faith at the hearing … However, in many ways a Tribunal member who puts any such adverse views to an applicant at a hearing fulfils that worthwhile objective of putting the applicant on notice of potentially adverse findings and thereby giving the applicant the opportunity to comment.'
25 However, in my opinion, the conduct of the Tribunal member went well beyond simply putting adverse views to the appellant. From the very beginning of the hearing, the Tribunal member expressed profound disbelief in the appellant's claims. She expressed her opinions about the merits of the appellant's claim vehemently. She asked questions of the appellant in an aggressive manner. Her responses to his answers were frequently dismissive and almost suggest contempt for the appellant's claim. As noted above, at one point she expressed the view that he was 'a typical example' of a Lithuanian who had left Lithuania for work purposes.
26 The statements by the Tribunal member evincing her disbelief in the appellant's claims continued throughout the hearing. Subsequently, as remarked upon by Nicholls FM, the hearing descended into almost a slanging match between the Tribunal member and the appellant's migration advisor.
27 I do not consider that the above conduct establishes actual bias on the part of the Tribunal member, especially when considering the reasons which were ultimately given for the decision. The question, therefore, is whether the conduct of the Tribunal member was such as to give rise to an apprehension of bias in a fair-minded lay observer.
28 The first respondent submits that a vigorous exchange with the appellant's advisor does not indicate that the Tribunal has a closed mind so as to constitute an appearance of bias. It refers to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], where Gleeson CJ and Gummow J stated:
'The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.'
29 In my opinion, the transcript reveals that the hearing went beyond a mere 'vigorous exchange'. The Tribunal member's behaviour would give rise to an apprehension in a fair-minded lay observer that the Tribunal had prejudged the appellant's claim. Tribunal members frequently are able to put adverse views to applicants for protection visas in a professional and objective manner such that no apprehension of bias could arise. This was clearly not the manner in which it was done in the present Tribunal hearing.
30 In making this finding, I note the observations of the High Court in Ex parte H, a migration case which involved similar allegations of bias on the basis of the conduct of the Tribunal member. In that case, the Court observed (at [30]-[32]):
'Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.'
31 I am of the opinion that the conduct of the Tribunal member at the hearing was such that there was a real possibility that a fair-minded lay observer would believe that whatever the appellant had told the Tribunal member, she would not have believed that the appellant had a genuine claim for a protection visa.
32 Nicholls FM placed reliance upon the fact that, in respect of the appellant's Roma ethnicity, the Tribunal had given the appellant the benefit of the doubt and accepted that he was an ethnic Roma/Russian. There are two answers to this statement. Firstly, the comment that the appellant did not have the appearance of an ethnic Roma was not the only statement of the Tribunal member which might be seen to suggest a prejudgment of the appellant's case. Rather, an apprehension of bias would have arisen from the cumulative effect of statements made throughout the hearing. Secondly, and more importantly, the fact that the Tribunal ultimately accepted that the appellant was an ethnic Roma cannot repair the flaws in the conduct of the hearing. Regardless of the findings made by the Tribunal member, her conduct at the hearing is such that it would give rise to a reasonable apprehension of bias.
33 For these reasons, I am satisfied that Nicholls FM erred in finding that the Tribunal decision was not affected by apprehended bias. Accordingly the appellant should succeed and that the decision of the Tribunal must be set aside.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.