AAT’s apprehended bias?

In reviewing a decision under s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant's visa, the Tribunal commenced its reasons as follows:

1.    A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.

2.    However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.

3.    Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.

4.    I am required to explain how I reached my decision. This is an expedited matter, and one of the Tribunal’s statutory objectives it [sic] to deal with matters efficiently. I will not waste time and Tribunal resources, which are public resources, addressing each and every disingenuous utterance made on the Applicant’s behalf. If that results in an appeal, it would create an opportunity for the Federal Court to provide clarity in this jurisdiction about the extent to which the Tribunal is required to engage with material that is obviously lacking in merit, particularly in circumstances where the sheer volume could raise a suspicion that there was an intention to create appeal points.

The Tribunal affirmed the decision under review, after which the Applicant sought judicial review of the Tribunal's decision in the Federal Court (FCA). 

The FCA said as follows:

13    The applicant’s case is based upon the following alleged conduct of the Senior Member:

(1)    using a dismissive and aggressive tone of voice and body language towards the applicant and the applicant’s witnesses;

(2)    engaging in extensive questioning that went beyond robust and forthright testing of evidence and amounted to cross-examination;

(3)    engaging in insensitive, rude and improper cross-examination;

(4)    indicating that she would not even accept the credibility of the evidence provided by witnesses who were not required for cross-examination by the Minister’s legal representatives;

(5)    making serious adverse findings concerning the conduct of the applicant’s lawyers;

(6)    indicating that commencing the proceeding was futile; and

(7)    making findings of fact that were illogical, unreasonable, unsupported by the evidence or insensitive.

71    In respect of a number of witnesses, just after the witness had taken an oath or affirmation to tell the truth, the Senior Member said, “I just want to give you a warning here that it is an offence to knowingly give false evidence to the Tribunal”, or words to that effect ...

Some of the questions to the FCA were as follows:

Question 1: Where a ground of apprehended bias is upheld, should the Court proceed to determine the remaining grounds?

Question 2: Even though the determination of whether there was apprehended bias involves the “double might” test, must the reasonable apprehension of bias be “firmly established”?

Question 3: In determining whether there was an apprehension of bias, can the cumulative effect of comments by the decision maker be taken into account?

Question 4: Can it be said that, although inquisitorial, the conduct of an application for review of a character decision "has many of the features of an adversarial process which may inform the question of whether a fair-minded lay observer might reasonably apprehend that a Tribunal member might not bring an impartial mind", in which case the conduct of the decision-maker "may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings"?

Question 5: Can it be said that the "reasons for decision may be taken into account in determining a ground of apprehended bias, at least where they are relied upon as evidence of some aspect of the conduct of the hearing or where they disclose some relevant fact not previously known to the parties"?

Question 6: Is it a fallacious argument to say that the making of some appealable error demonstrates prejudgment of the case?

Question 7: Is it the case that "the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified"?

Question 8: In some cases, might it be reasonably "apprehended by a fair-minded lay person that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct, that he might not bring an impartial mind to his assessment of the appellant’s case"?

Question 9: Do the Tribunal's comments about money to be made by lawyers and futility suggest that "the Tribunal had assessed the applicant’s case as being doomed to failure after reading the material and before hearing any oral evidence and submissions"?

Question 10: Can the comments of the Tribunal concerning futility "also be taken into account as relevant to the perception of a fair-minded observer as disclosing a relevant matter not previously known to the parties"?

Question 11: Did the Tribunal effectively take the role of a contradictor by engaging in extensive questioning of the witnesses that crossed over into cross-examination, thus strengthening the apprehended bias argument?

Question 12: Did the Tribunal's warning that it is an offence to knowingly give false evidence to the Tribunal give rise to a "perception might arise that, notwithstanding the witnesses having taken an oath or affirmation, the Tribunal had a predetermined expectation that they would give false evidence that made it necessary to give the additional warning"?

Question 13: If the answer to Question 12 is 'yes', is it the case that "while this factor might not be critical on its own, when taken together with the nature of the cross-examinations that ensued, it adds weight to the proposition that a fair-minded observer might reasonably apprehend that the Senior Member had closed her mind to persuasion"?

The FCA answered those questions as follows: