Ground of appeal 2: apprehended bias
13 The appellant's second ground of appeal claims that "the Tribunal is biased in making the decision". According to the appellant's Notice of Appeal, this was because the Tribunal relied on the fact that the appellant was unable to demonstrate the five fundamental exercises of Falun Gong and thereby determined that the appellant had limited knowledge of Falun Gong.
14 In order to establish bias, it is not sufficient if a reasonable bystander "has a vague sense of unease or disquiet": Jones v Australian Competition and Consumer Commission (2004) 76 ALD 424 at [100]. In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435, the High Court explained the test for apprehended bias in administrative proceedings in the following terms:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
(References omitted.)
See also Chey v Minister for Immigration and Citizenship [2007] FCA 871; Rana v Australian Federal Police (2006) 44 AAR 151 at [49]-[50]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL (1986) 161 CLR 342.
15 Even a reasonable apprehension of bias must be firmly established. As the Federal Magistrate stated, it is a serious allegation, and must be strictly proven: SBBF [2002] FCAFC 358; SBBS [2002] FCAFC 361.
16 There is no basis, let alone a firm basis, to make good a claim of apprehended bias on the part of the Tribunal. As the Federal Magistrate outlined, the appellant's submissions are based upon a misconception of the Tribunal and its processes. In this Court, the appellant must demonstrate that the Federal Magistrate failed to apply the correct principle. He does not. No error is revealed in the reasons of the Federal Magistrate. This ground of appeal must also be dismissed.