Drawing the line in apprehended bias cases: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41

The rule against bias is a fundamental aspect of procedural fairness in judicial and administrative decision-making. The legal test for apprehended bias is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at [6].

Impartiality of judges

Judicial impartiality is receiving increased scrutiny. On 2 August 2022, the Attorney-General tabled in Parliament the report of the Australian Law Reform Commission (ALRC) on judicial impartiality in federal courts, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138). The ALRC concluded that the current law on bias does not require amendment. However, the ALRC made 14 recommendations relating to enhancing transparency, judicial appointments and education, and the establishment of a federal judicial commission.

The ALRC inquiry was prompted by a decision of the Full Court of the Family Court in July 2020, Charisteas v Charisteas (2020) 60 Fam LR 48, in which a majority of the Full Court did not find apprehended bias in a family law dispute although the wife’s counsel had had personal contact with the primary judge during the proceeding, during which time they met for coffee, talked over the phone and exchanged text messages (the High Court subsequently allowed an appeal and ordered a re-trial).

Impartiality in an administrative context

Just as fundamental is the impartiality of administrative decision-makers. Although the rule against bias applies equally in relation to non-curial proceedings, the application of the principle must take account of the different decision-making context. In particular, courts have held that in reviewing administrative decisions, regard must be had to:

• the different nature of the body or tribunal and the inquisitorial or administrative character of the proceedings: Refugee Review Tribunal, Re: Ex parte H (2001) 179 ALR 425 at [5];
• the task of a tribunal in determining the facts for itself, and the proper role of testing or probing a recounted history which, if undertaken by a judge in adversarial litigation, might give rise to an apprehension of a lack of impartiality: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19]; and
• the fact that specialised tribunals can be expected to accumulate information or ideas through deciding previous applications which may be critical to deciding on an individual case: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [180].

In the context of immigration matters, the inquisitorial role of the Administrative Appeals Tribunal (Tribunal) may involve robust and forthright testing of a visa applicant’s claims and such testing may not in and of itself sustain a finding of apprehended bias, and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI) at [24].

The facts and decision in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41

The recent decision of Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 (Chen) provides an example of a Tribunal member’s conduct crossing the line established in Ebner and SZRUI. In Chen, the Full Federal Court unanimously allowed an appeal from the former Federal Circuit Court of Australia and determined that a decision of the Tribunal was vitiated by apprehended bias.

Mr Chen applied for a Temporary Graduate visa in 2019. In his previous student visa applications, Mr Chen had failed to disclose a criminal matter for which he was sentenced to a good behaviour bond. He disclosed the matter in this Temporary Graduate visa application.

After a delegate of the Minister refused Mr Chen’s application on the basis that he provided false or misleading information in his student visa applications, Mr Chen sought review in the Tribunal. He was assisted by a migration agent and sought to give evidence through a Mandarin interpreter although the Tribunal limited the use of the interpreter. The hearing took around 35 minutes and at its conclusion the member affirmed the delegate’s decision and gave ex tempore reasons.

On appeal, Mr Chen relevantly alleged that the Tribunal’s decision was affected by apprehended bias, by reason of ‘the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness [sic], exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter…’.

The Full Court considered the Tribunal member’s conduct cumulatively and in totality, and found that a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the review. In forming this view, the Full Court highlighted several problematic features of the Tribunal hearing.

First, the Full Court accepted Mr Chen’s submission that the member opened the hearing on a ‘hostile note’ and unfairly accused Mr Chen of ‘playing games’ by persisting with his request to use an interpreter. The transcript of the Tribunal hearing revealed the following exchange:

…

MR CHEN: No, actually, I can speak English but my English is not reaching the legal level. That’s why I require a —

MEMBER: What do you mean “the legal level”? What’s your IELTS score – overall band score?

MR CHEN: Seven.

MEMBER: Seven. I wonder if you’re playing games with me, Mr Chen. Someone with an overall band score of seven has a good command of English, however, you want us to use an interpreter for everything, do you?

…

The Full Court observed that in this exchange, which occurred at the outset of the hearing, the member ‘used a loud and intimidating tone, which was redolent of disbelief.’ The member’s comment about playing games may have been reasonably understood as accusing Mr Chen of deliberately trying to mislead the member as to his proficiency with the English language by pretending to need the assistance of an interpreter, despite the fact that Mr Chen had explained that he was concerned his language skills were not sufficient for a legal setting (at [57]).

Second, the member persisted in asking irrelevant questions which stemmed from an irrelevant assumption, about the date on which Mr Chen had engaged a migration agent. When Mr Chen began to respond as to when he engaged a migration agent, the member interrupted him and said in a critical tone, ‘[s]o you don’t do anything for two weeks’. However, as the Full Court noted, Mr Chen made clear, when he was given a chance, that he had appointed the migration agent about one week after he received notice of the Tribunal hearing but he did not notify the Tribunal of that appointment until a few days before the hearing. The Full Court described this aspect of the hearing as involving ‘gratuitous and unjustified criticism’ of Mr Chen’s preparation of his case (at [63]).

Third, the Full Court agreed with Mr Chen that the Tribunal member displayed little or no interest in the central legal issue in the proceeding, which was whether Mr Chen’s failure to disclose his criminal matter in his previous student visa application was purposely false. The Full Court reasoned that it was ‘difficult to understand’ why the Tribunal member did not at any point ask Mr Chen why he made an incorrect declaration as to his convictions in his earlier student visa application, whereas in his 2019 visa application he freely answered the same question correctly. The Court further observed that the fact Mr Chen freely provided the correct information in his 2019 visa application could be said to indicate that the incorrect declaration in his student visa application did not involve purposeful falsity (at [66]). The Tribunal’s failure to explore this issue supported a finding that a fair-minded observer might reasonably apprehend that the Tribunal did not have an open mind.

The Full Court allowed Mr Chen’s appeal and remitted the matter to the Tribunal.

What does Chen mean for you?

When considering whether a decision-maker has engaged in conduct that might lead to a reasonable apprehension of bias, Chen indicates that courts will look to the totality of a decision-maker’s conduct.

Decision-makers tasked with conducting a hearing before making a decision should be mindful that it is properly within their role to test the arguments and evidence put forward by participants in the hearing. If the decision-maker considers that there are particular matters left unresolved, the decision-maker will be entitled to doubt an applicant’s claims in the course of making findings about the factual matrix on the basis of the evidence before them. Probing an applicant’s factual claims and testing the internal consistency of a narrative are normal aspects of the inquisitorial process.

However, decision-makers should be cautious about the prospect of bringing a closed mind to an issue which could give rise to a claim that they have pre-judged the matter or that they are not impartial. Although there is unlikely to be a bright dividing line in bias cases, apprehended bias may be made out if a fair-minded observer might infer that there is ‘nothing the applicant could say’ that might change the decision-maker’s mind. Persistently asking irrelevant questions, interrupting a witness, and pursuing gratuitous criticism of the witness and their evidence – of the kind displayed in Chen – are all indicators of where courts will draw the line.

This article was written by Michael Palfrey, Partner, Sarah Thompson, Partner and Neil Cuthbert, Senior Associate. The authors would like to thank Spencer Davis for assistance in preparing this article.