Bilgin v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - judicial review - whether the Refugee Review Tribunal was actually biased - test for actual bias - whether the Tribunal was under an obligation to avoid the appearance of disqualifying bias - whether there was such an appearance - waiver of bias

Migration Act 1958 (Cth) ss 420(2)(b), 467, 476(1)(a), (f), 476(2)(a)

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Anderton v Auckland City Council [1978] 1 NZLR 657 not followed Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 Dickason v Edwards (1910) 10 CLR 243 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Livesey v New South Wales Bar Association (1983) 151 CLR 288 R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167 approved R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty. Ltd. (1953) 88 CLR 100 Re Gooliah and Minister for Immigration and Citizenship 63 DLR (2d) 224 Re JRL; Ex parte CJL (1986) 161 CLR 342 R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Thambythurai and Anor v Minister for Immigration and Multicultural Affairs and Anor (Federal Court, unreported 16 September 1997, Finkelstein J) Vakauta v Kelly (1989) 167 CLR 568

IBRAHIM BILGIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG766 OF 1996

FINKELSTEIN J

MELBOURNE 6 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG766 of 1996

BETWEEN:                        IBRAHIM BILGIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:  FINKELSTEIN J

DATE OF ORDER:            6 OCTOBER 1997

WHERE MADE:                 MELBOURNE

MINUTES OF ORDERS

The application for review be dismissed.

The applicant pay the respondents' costs of and incidental to this application including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

VG 766 of 1996 BETWEEN:

IBRAHIM BILGIN

Applicant AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:  FINKELSTEIN J

DATE:  6 OCTOBER 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: It is not uncommon these days to find serious but unjustified allegations being made against administrative decision-makers by persons dissatisfied with the outcome of their claim. This is one such case. The applicant applied to the Refugee Review Tribunal for a review of the decision of a delegate of the respondent (the Minister) that the applicant was not entitled to a protection visa under the Migration Act 1958 (Cth). That application did not succeed. The applicant says that the member constituting the Tribunal who heard and determined the review should have disqualified himself. Two allegations are made to support this contention. The first is that the member was actually biased in reaching his decision. The second is that there existed a reasonable apprehension that the member might not have been impartial in his determination of the review. To understand how these allegations come to be made it is necessary to say something about the applicant's claim for refugee status, the events leading up to the review by the Tribunal and what occurred during the hearing.

The applicant is a national of Turkey. He is also an Alevi which he described as "a religious sect in Islam" although there is doubt whether this is an accurate description. At all events he says that Alevis form a distinct religious community in Turkey. The applicant claims to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol (each expression is defined in s 5) and thereby entitled to the grant of a protection visa: see s 36(2). This claim is based on the assertion that the applicant has a well founded fear that if he is required to return to Turkey he will be persecuted by the government of that country for the reason that he is an Alevi.

The evidence the applicant presented to the Tribunal in support of his claim for refugee status included a lengthy report by Mr Paul White who was also called to give oral evidence. Mr White is a graduate of the University of Melbourne. He holds the degree of Bachelor of Arts (Hons) and is currently writing a doctoral thesis. Mr White has tutored and lectured in courses such as the Modern Arab World and the Modern Middle East. He has delivered papers and given occasional lectures on the Kurds of Turkey. The report Mr White prepared for the applicant covers a number of different topics. It details the nature of Aleviism and the friction between Alevis and other religious groups in Turkey, especially the Sunni Muslims. It describes the harassment and persecution of Alevis both in the past and at the present time. It gives instances of atrocities committed against Alevis as recently as March 1995 and January 1996. It seeks to establish that the ruling party in Turkey is unable to prevent the persecution of Alevis. The report questions the reliability of information emanating from the Department of Foreign Affairs and Trade to the effect that in Turkey Alevis are able to pursue their religious practices, are not oppressed citizens and that whatever "official discrimination" does exist is being overcome. Finally, Mr White's report favourably assesses the applicant's claim for refugee status based on his "personal persecution". The oral evidence given by Mr White to the Tribunal was to much the same effect as his report.

This was not the first occasion on which Mr White had prepared a report for and given evidence on behalf of a person appearing before the Tribunal to seek the grant of a protection visa. He had done so on at least four earlier occasions. It is likely, although it is not altogether clear, that on each of those occasions Mr White gave evidence on behalf of an Alevi from Turkey who claimed to be a refugee because of religious persecution. On one occasion Mr White appeared before the same member of the Tribunal who heard the applicant's case. This appearance was not long before the applicant's case was heard. On that earlier occasion Mr White gave evidence that was to a significant extent similar to the evidence that he gave on behalf of the applicant. So much appears from the reasons for decision given by the Tribunal in the earlier case and from a letter written by Mr White which I will refer to later. In that earlier case Mr White failed to convince the Tribunal that all of his evidence should be accepted and the applicant failed to convince the Tribunal that he had a well founded fear of persecution if he returned to Turkey. For present purposes two paragraphs from its reasons for decision in the earlier case adequately explain the views formed by the Tribunal:

"In considering all of the circumstances, it concludes there is not a real chance of the Applicant becoming involved in, let alone suffering serious harm, should there be any further outbreaks of violence against Alevis such as witnessed in 1995. It further concludes that the chances of the Applicant encountering serious harm on account of his religion are no more than remote, notwithstanding Refah's leading role in what appears to be a fairly unstable coalition government and its control of various regional governments. In making these findings, the Tribunal has considered Mr White's evidence. It is apparent that he has some knowledge of Kurdish issues in Turkey, but in relation to Alevi issues, he was unable to indicate the approximate proportion of Alevis in the Turkish population, could not describe the concentration, if any, of Alevis in Izmir, did not know when the Alevi fasting period occurred, he suggested that the Applicant faced execution for apostasy at the hands of Sunni Muslims because he may renounce his Alevi religion and he could give only anecdotal evidence, derived from his wife's knowledge, of how Alevis behaved during the Sunni fasting period, namely, that Alevis had to leave on their lights at night time to avoid harassment by Sunnis. He stated that the violence that occurred in Istanbul in 1995 was repeated all over Turkey and agreed to provide information in relation to Izmir to support his claim, but no such information was forthcoming. Despite Mr White's agreement with the Applicant's solicitor that DFAT information was unreliable, he provided no information to support that contention. The Tribunal appreciates Mr White's efforts to provide information and has found some of it of use, but is not persuaded that he has expertise on Alevi issues and nor does his evidence alter the conclusion that the Applicant is not at real risk of persecution because of his religion."

Mr White took exception to the comments about him. He was also very critical of the result in the case. Thus provoked, Mr White took the unusual, if not extraordinary, step of writing to the Principal Member of the Tribunal to express his criticisms. The letter is dated 7 October 1996. The date is significant because it is just four weeks before the hearing of the applicant's case. In the letter Mr White said that he had three concerns, viz:

"that important evidence presented by myself in this case has been disregarded without due cause being given for this; that certain unwarranted assumptions, distortions and inferences appear to have been made and that an unjustified characterisation of my abilities as an expert witness has been stated, which cannot but have serious ramifications for my professional career."

Attached to the letter was a detailed (thirteen page) critique of the reasons given by the Tribunal. Some of it appears to be a credible analysis exposing deficiencies in many findings of fact made by the Tribunal. While this is not strictly relevant here it does help to explain why Mr White wrote as he did. Mr White also argued that the Tribunal was "grossly unjustified" in challenging his expertise in Alevi matters. Again it is difficult to tell but, having regard to what appears to have been the evidence given by Mr White in the earlier case, it seems that the Tribunal may have been unduly dismissive of important parts of that evidence. Mr White's critique contained an attack on the member that might fairly be described as offensive. It accused him of being "breathtakingly uninformed" about events in Turkey. It also accused him of deliberately ignoring any evidence that was in conflict with the member's preconceived assumptions of fact about issues concerning Alevis. A copy of the letter and the attachment were shown to the member by the Principal Member.

Mr White received a response from the Deputy Principal Member who pointed out that he did not have the authority to interfere in the decision-making processes of the Tribunal. He said that members are independent statutory officers who possess the same protections and immunities as those enjoyed by justices of the High Court and only courts had authority to interfere with their decisions. Thus, none of Mr White's criticisms was answered.

It is now necessary to turn to the events of 8 November 1996. That was the day on which the Tribunal heard the applicant's case. The applicant was present and was accompanied by his solicitor. Before any evidence was taken the solicitor made a submission that the member should not hear the application on the ground of bias. It is not clear whether actual bias was being alleged but it seems that it was. It is clear that it was contended that there existed a reasonable apprehension that the member was biased. It all centred on the views the member had formed about Mr White as a credible expert witness. Here are parts of the submissions taken from the transcript:

Solicitor: In view of your disparaging remarks about Mr Paul White's expertise in another matter which I was given, which were placed in a decision of yours in September this year, and particularly in respect to the issues relating to him being an expert on Alevis, and as Mr Bilgin's case is relating to Alevis, he being an alevi, and as Mr White's evidence and his report in particular presently with you, I would consider it is inappropriate for you to preside over this particular case, because one of our main witnesses, or our main expert witnesses, is a person to whom you have already made disparaging comments about in another sitting and I think it is inappropriate that you preside over this particular matter.

Member: On what authority?

Solicitor: Well, as a matter of bias.

Member: What authority can you give me to say it is up to either you or the witness to determine who is an expert.

Solicitor: Well, it is not up to - you rely, for instance - you say in your decisions regularly that you rely on anonymous sources such as DFAT, and other Foreign Affairs reports - this country's reports and the international reports. Here we have got somebody who is a person who is recognised as an expert by Turkish and Kurdish affairs, and Alevi affairs, by everybody else but you. He is recognised at Keating University, he is recognised internationally, he is recognised by other persons who use him.

...

Member: How am I biased - what is the bias?

Solicitor: The bias is the actual disparaging comments which were actually met very well by Mr Paul White.

Member: These are straight-out factual comments.

...

Member: Effectively, what it [a reference to a Federal Court decision] says is it is up to the Tribunal to decide whether or not a person is an expert in a particular case in relation to particular matters. And it may be in this case I think Mr White is an expert. In the last case I did not. Look, I am not going to rule myself out for bias.

Solicitor: Are you going to be - in the same way as the other cases you have got coming up before you?

Member: Well, I have not seen any authority that I am biased. I have not seen any authority that would make me come to a conclusion that I should rule myself out for bias. Neither you nor Mr Klaver have come up with any. All you have done is say you disagree with my assessment of Mr White's evidence in one case. And then you want to determine - basically what you want to do is shop around for another member.

Solicitor: I do not want to shop around for another member. In this case we just think you are unsuitable.

Member: Well, it might be that you think I am unsuitable, but it is a different thing to being biased.

Solicitor: You are unsuitable for bias because you have already expressed that bias. You have already said, look, I do not believe this person is an expert on Alevi matters. That is what you have said.

Member: I do not agree with that.

...

Solicitor: I just want to talk about your ability to remain as a presiding member here. I have not had a chance to read the decision, but in regard, firstly - the first thing is I do not resile from the fact that you are biased, or there is a potential for you to be biased, because of the way in which you have disparaged Mr Paul White's opinions. But not only that, we say that you have in place of Mr White's view in a previous decision have made your own amateurish opinion on your amateurish knowledge of Alevi culture, and you are basically using your opinion against Mr White's opinion.

Member: You will know I am charged with finding the facts, and I am obliged to look at all the information.

...

Member: Yes, [Mr White] knows something about Kurds.

Solicitor: Every knows everything about - lots of things about Kurds. He is an expert on Kurds and an expert on Alevis.

Member: Well, it may be the case that he turns out to be expert in this case, and I will listen to what he says, but he certainly was not in the last case.

At the conclusion of these exchanges the member ruled that he was not disqualified from hearing the case on account of bias. The review then proceeded. The applicant gave his evidence through an interpreter. Mr White was called to give evidence. His report was tendered and he was asked questions by both the solicitor and by the member about its contents and about other matters as well. When the evidence had been taken the solicitor again took up his complaint about the bias of the member. This time Mr White became involved in the discussion. This was most unsatisfactory. The applicant, who had been listening through his interpreter, intervened and said:

I am sure that this case will be rejected. The issue has got off track. If you ever hear that I have committed suicide in the future, you are the responsible person.

The applicant's prediction turned out to be correct. On 27 November 1996 the Tribunal confirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. Conformably with the Migration Act reasons for that decision were given. In those reasons the Tribunal referred extensively to the evidence given by Mr White and summarized a good deal of it. Some of his evidence was contrasted with other evidence before the Tribunal. Reference was made to Mr White's inability to provide information in answer to questions put to him by the Tribunal. Then there appears the following passage:

"Of course, it does not follow that gaps in his knowledge inevitably leads to the conclusion that he is not an expert in Alevi matters for the purposes of this particular case, and the Tribunal has referred above to information he has provided that is both valuable and, in some instances, is reflective of information from other sources. However, regardless of whether or not he is an expert on Alevi matters, and after taking all of the information into account, the Tribunal finds that his conclusion that all Alevis except those who have been co-opted by the Turkish government are at a real risk of persecution is not supported by other country information from a variety of sources or by the Applicant's personal experiences. Indeed, the information on which he relies, while demonstrating some persecution of Alevis, does not support his conclusion. It shows that there are isolated incidents from time to time that sometimes have the most grave consequences for a small number of Turkey's 20 million Alevis, but it does not support a conclusion that the Applicant faces a real chance of persecution because he is an Alevi."

This sufficiently deals with the facts. I now turn to discuss the manner in which the applicant brings the matter before the Court. Section 476(1) of the Migration Act provides the grounds upon which a decision of the Tribunal may be reviewed. In his application for review the applicant relies on a number of grounds, two of which are presently relevant. The first is that provided by s 476(1)

It is apparent that if actual bias on the part of the Tribunal is established its decision can be set aside. It is not apparent that this will be so if apprehended bias is shown. Ultimately this will depend on the resolution of a number of different questions. The first is whether s 420(2)

s 476(2)(a) which deny as a ground of review a breach of the rules of natural justice.

I have addressed some of the issues that arise in connection with these questions in Thambythurai & Anor v Minister for Immigration and Multicultural Affairs & Anor (Federal Court, unreported, 16 September 1997). I will not repeat what I said in that case. However, to understand what follows I will briefly state a number of the conclusions that I reached:

The difficult question here is whether the content of the obligation imposed on the Tribunal by s 420(2)

The first section that is relevant is s 411 where the decisions that are reviewable by the Tribunal are set out. In substance they are decisions to refuse to grant or to cancel a protection visa. Thus the Tribunal is an essential part of the mechanism by which Australia carries out its obligations towards refugees as required by the Refugees Convention and the Refugees Protocol. Next there is s 420 itself. Sub-section (1) provides that the Tribunal's objective, in carrying out its functions, is to be "fair, just, economical, informal and quick". This instruction, in combination with the language of s 420(2)(b), certainly suggests that the Tribunal is required to conduct itself in a way that persons who are affected by its decisions, as well as persons who observe the performance of its functions, can be satisfied that the Tribunal is unbiased and that it appears to be unbiased. This is so that parties as well as the public will have confidence in the administration of justice through the medium of the Tribunal. Then there is s 467. It provides that a member who has a conflict of interest in relation to a review must disclose that conflict and not take part in the review without obtaining the consent of the Principal Member or the Minister (as the case requires) as well as the consent of the applicant. Section 467(2) provides that there will be a conflict of interest where "a member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that review". Bias, whether real or apprehended, often results from a conflict of interest. By enacting s 467, the Parliament has taken a significant step towards ensuring that a member who sits will be free from the taint of bias. However, as I will later show, actual bias and apprehended bias can arise in circumstances far removed from any conflict of interest.

The next relevant section is s 476(1)

Further, it seems to me that ss 420, 467, 476(1)

If the foregoing analysis is correct then whatever might be the scope of operation of s 420(2)

Having reached the conclusion that, on the proper construction of 420(2)(b), the obligation to act in accordance with "substantial justice" does not require the Tribunal to avoid the appearance of disqualifying bias, strictly it is unnecessary for me to deal any further with this part of the applicant's case. However, because it forms such a significant part of the applicant's claim and because I might be wrong in my view of s 420(2)

A general principle that applies to judges and administrative decision-makers alike was that stated by Lord Esher MR in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 758:

"In the administration of justice, whether by a recognised legal Court or by persons who, although not a legal public Court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biassed."

This had not always been so. When Blackstone published his Commentaries between 1765 and 1769 he wrote (Comm.vol iii at 361):

By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged. For the law will not hold a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and I whose authority greatly depends upon that presumption and idea."

Now however, the cases show that if a decision-maker is actually biased or if it can be "firmly established" that a reasonable observer might believe that the decision-maker will not approach his task fairly and with an unprejudiced mind, the decision-maker is disqualified from sitting: R v the Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-54, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty. Ltd. (1953) 88 CLR 100 at 116.

There are very few cases in the law reports where a finding of actual bias has been made against a judge. This no doubt reflects well on our system of justice. To some extent, however, it is also a reflection of the fact that where a finding of presumed or constructive bias can be made there is no need to consider the much more serious allegation of actual bias. Where the courts have considered the question of actual bias the focus of the enquiry has been whether the decision-maker has brought a "closed mind" to the enquiry: see for example Re Gooliah and Minister for Immigration and Citizenship 63 DLR (2d) 224 at 229 and Vakauta v Kelly (1989) 167 CLR 568 at 576. There are conflicting decisions on what needs to be shown to establish that a decision-maker has a "closed mind". One view is that expressed by Devlin LJ in R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167. His Lordship said at 187 that:

"[t]he court might come to the conclusion that there was such a likelihood [of bias] without impugning [the statement of the decision maker] that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so". This passage was cited with approval by Lord Goff in R v Gough [1993] AC 646 at 659. On this view actual bias need not be wilful. Another view is that to make out a case of actual bias it is necessary to show that the decision-maker's mind was intentionally closed. Support for this approach is found in Anderton & Ors v Auckland City Council & Anor [1978] 1 NZLR 657 at 687 where Mahon J said: "A party attacking a decision, or seeking prohibition against pending adjudication, may prove actual bias. The relative infrequency of decisions upholding this allegation is explicable, as already indicated, by the firm mandate of juristic policy that an inquiry into judicial motivation is undesirable. Actual bias entails, as a necessary ingredient, the operation of unlawful motive or intent in reaching the decision, and the objective presence of that likelihood exonerates the reviewing tribunal from any determination as to whether the adjudication is disqualified for actual bias or whether the decision was controlled by that vitiating factor. But actual bias may be alleged and proved." (citations omitted) It is hard to see why this approach is correct. I accept that most often actual bias will result from an intentional state of mind. But this will not always be so. For so long as the possibility exists that bias may be unconscious there is no reason in principle why a claim should not succeed in that circumstance. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point in so far as the validity of the decision is concerned. Constructive or apprehended bias is of a very different character. It does not depend at all on the state of mind (whether conscious or unconscious) of the decision-maker. It is concerned with appearances - that is, the appearance of justice being done: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. Constructive or apprehended bias can arise in many different circumstances. One clear example is that of a pecuniary interest in the outcome of a case: Dimes v Grand Junction (1852) 3 HLC 759 where an order was set aside because the Lord Chancellor was a shareholder in the company concerned. Another example is that described as "incompatibility" by Isaacs J in Dickason v Edwards (1910) 10 CLR 243 at 259. It arises when the decision-maker has some other position in the case. A common instance would be where the decision-maker is officially connected with a party. Another example is where there is a relationship, of friendship or otherwise, between the decision-maker and a party: Ex parte Blume; Re Osborn (1958) 58 SR (NSW) 34 where there was a close friendship between a judge and a party's spouse. Another example again, and the one with which we are concerned in this application, is what has been called predetermination or prejudgment. By this I mean the situation where, as a result of earlier events, a decision-maker has formed views about an issue of law or fact that will arise for his or her determination. It is not surprising that this situation frequently occurs. Now the legal implications need to be explored. What the cases establish is that ordinarily prejudgment or predetermination alone will not be a disqualifying factor. Something more must be shown. Usually what must be shown is that there is a reasonable apprehension that the decision-maker will not alter his or her preconceived position regardless of the evidence that may be led. Mason J explained this in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352: "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one party. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established'". The same point was made in the joint judgment of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 where their Honours said: "A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an enquiry merely because he has formed a conclusion about an issue involved in the inquiry ... When suspected pre-judgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her."(citations omitted) Here the emphasis is on the partiality of the decision-maker not merely on the existence of a predetermined view. Partiality exists when the decision-maker has a closed mind because of his or her earlier views. But the facts must show a reasonable fear that the mind of the decision-maker is closed. However, there is one circumstance where little more would need to be shown than the fact that a judge or tribunal has formed a particular opinion as a result of an earlier case. That circumstance is where there has been an adverse view taken of the honesty or creditworthiness of a witness, at least an important witness, or a party. Then partiality will be presumed. Two decisions of the High Court should be referred to in this connection. The first is R v Watson; Ex parte Armstrong (1976) 136 CLR 248 where at 264 Barwick CJ, Gibbs, Stephen and Mason JJ said: "As the cases show, there are some matters on which a judge may have pre-conceived opinions, and yet be qualified to sit, but speaking generally the credit of an essential witness, where the case may turn on credibility, is not one of them."

The second is Livesey v New South Wales Bar Association (1983) 151 CLR 288. There the High Court considered the case of the New South Wales Court of Appeal Division sitting on an application to strike a barrister off the roll. There was a possibility that a particular witness would give significant evidence on that application. Two members of the Court of Appeal had previously expressed "strong views that she was a witness without credit ... whose evidence should be rejected." In its joint judgment the High Court said at 294:

"(T)he question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways.'" (citation omitted) Later the High Court said at 299-300: "Necessity and the extraordinary case ... make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances... [A] fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."

In the result the High Court was unanimous in holding that the two judges were disqualified from sitting. Somewhat similar facts were considered in Australian National Industries Ltd v Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411. The collapse of the Spedley group led to a number of complicated actions being instituted in the Commercial Division of the Supreme Court. The cases were assigned to one judge in the expectation that a good deal of judicial time and costs would be saved. In deciding one action the judge was very critical of the honesty of a number of the directors of Spedley and was also critical of the conduct they engaged in. He was asked to disqualify himself from hearing any other case involving those persons. The Court of Appeal (by a majority of 3:2) held that the judge was disqualified on the basis that a suspicion of bias was inevitable having regard to the nature of his earlier findings: see especially Mahony JA at 441-442 and Meagher JA at 428. Later cases in New South Wales have doubted whether Spedley was correctly decided: see eg R v Masters (1992) 26 NSWLR 450. I have no doubt that on the facts of the particular case the Court of Appeal correctly applied the principles relating to apprehended bias.

There is a qualification that should be made to the proposition that if a view is held by a decision-maker about the reliability or honesty of a party or an important witness that alone will result in an apprehension of disqualifying bias. This qualification was noted by the High Court in Vakauta 167 CLR at 584-585. The issue that arose in that case was whether the preconceived views held by a trial judge about certain expert medical witnesses prevented that judge from hearing a case involving those witnesses. In that connection the High Court drew a distinction between expert and non-expert witnesses. Brennan, Deane and Gaudron JJ said at 571:

"Both necessity and common sense require that the distinction be drawn between the case where a judge has some pre-conceived views about the expertise or reliability or professional opinions of an expert medical witness and the case where a judge has pre-conceived views about the credit or trustworthiness of a non-expert witness 'whose evidence is of significance on ... a question of fact' which 'constitutes a live and significant issue' in the case."

The High Court drew this distinction for the very practical reason that it would become impossible for courts if a judge was disqualified from hearing a case merely because the judge held an adverse view about an expert witness. There are many areas of the law where a small number of expert witnesses regularly give evidence. It would not take too long before all decision-makers would be disqualified from sitting on a case involving those witnesses. But it is also correct to say, in my opinion, that although there will not be a reasonable apprehension of bias merely because a judge has expressed an adverse opinion about an expert witness, the manner and nature of the criticism, as well as the circumstances in which it is made, may well justify such an allegation. In other words a close examination of the facts and circumstances surrounding the formation of an adverse view about an expert witness may show a reasonable apprehension that the judge will not have an open mind towards the evidence that expert will give in a later case.

I think that another distinction should also be drawn. It is the distinction between the case where prejudgment is alleged against a judge or tribunal that is, by its constituting legislation, presided over by a person with legal training and that where prejudgment is alleged against a lay tribunal. Apprehended bias may be more easily made out, in my opinion, in the case of a lay tribunal than the case of a decision-maker whose legal training, experience and commitment to judicial office enable him or her to bring an unbiased mind to a case: see the comments of Toohey J in Vakauta at 585.

Do the facts make out a case of actual bias? I am of the clear view that there is no substance to the allegation. The first matter to mention is the way in which the member dealt with Mr White when he gave evidence in the earlier case. It is apparent that some of that evidence was accepted by the member. The member acknowledged his appreciation of it. The member did say that he was "not persuaded that (Mr White) has expertise on Alevi issues". This was not an offensive comment. It was not an attack on Mr White's credit. It could hardly be suggested that it demonstrated ill-will on the part of the member towards Mr White. Nor would the fact that certain parts of his evidence were not accepted lead to the conclusion that the member bore any hostility towards Mr White. The second matter to consider is what was said during the submissions on 8 November 1996. Here the member rejected the suggested that he had made disparaging comments about Mr White. He had not done so in my opinion. Further, the member said that he would listen to the evidence to be given by Mr White and he might accept it. The member was attempting to make it clear that he had an open mind towards Mr White. I do not regard this statement as self-serving. In the context of the discussion that was taking place it seems to me that what the member said would be regarded by an objective bystander as a reflection of the true position namely that the member would accept evidence given by Mr White if it was persuasive. Moreover, nothing that was said by the member could be taken as a display of animosity towards Mr White such as would allow the inference to be drawn that the member was biased. Compare with R v Magistrate Taylor; Ex parte Rudd 50 DLR (2d) 444 where the personal animosity of a judge towards a particular barrister was so great that the court did make a finding of actual bias. Nor does anything that was said admit of the inference that the member was committed to a point of view from which he would not depart regardless of the evidence that was led. Compare with Gooliah where the court found that a deportation order made by an immigration officer was the result of an enquiry that was not designed to elicit the truth but to justify a point of view to which the officer was already committed. Finally I turn to the reasons for the decision that is the subject of this application. Of course those reasons were written after the allegations of bias had been made and in the knowledge that the reasons would be carefully scrutinized. Therefore, I approach the reasons with care. But even with that qualification I can detect nothing in them that would suggest any possibility of actual bias. The only comment critical of Mr White was when it was pointed out that he was unable to satisfy the member of certain matters. This hardly supports a finding of actual bias.

Is the claim of apprehended bias any better? Or, to put the question in its proper legal context, do the facts establish a reasonable apprehension that the member would not decide the applicant's case impartially or without prejudice? Again I am of the firm view that the applicant does not make out his case. I do not deny that the facts support an inference that the member was of the view that in certain respects Mr White was not able to give reliable evidence about events in Turkey. But that is not sufficient to disqualify the member as the cases show. More to the point, there is nothing in the evidence that "firmly establishes" a reasonable belief that the member was so committed to disregarding the views of Mr White that nothing Mr White could say would alter that position. The assumption that lies behind the applicant's contention of apprehended bias is that having rejected parts of Mr White's evidence and having said that he lacked expertise on Alevi matters on an earlier occasion, it is reasonable to assume that the member would continue to hold those views regardless of the content of the evidence Mr White would give. This assumption derives no support from what the member said in the earlier case. It will be recalled that the member rejected part of Mr White's evidence because of his inability to demonstrate knowledge on certain issues and because Mr White failed to provide support for certain assertions that he made. Far from making out an allegation of apprehended bias these statements tend to support the conclusion that the member would have an open mind on any issue advanced by Mr White provided it was supported by reliable evidence. The comment that the member was "not persuaded that (Mr White) has expertise on Alevi issues" needs to be read in the context of the member's acceptance of some of Mr White's evidence about events in Turkey. The reason the member rejected part of Mr White's evidence was the member's view that Mr White was unable to satisfactorily demonstrate that he was an expert on all areas in which he claimed expertise. It is not unusual for an expert to find that some of his evidence is accepted and some is rejected when it is weighed against competing evidence. It could not be inferred from such a decision that the evidence of the expert will be rejected on future occasions. Finally, when one turns to what transpired at the hearing on 8 November 1996 no support is found for the claim of apprehended bias for the reasons that I gave in relation to the allegation of actual bias.

In the result the applicant has failed to make out his claim that the decision of the Tribunal should be set aside either for actual bias or for apprehended bias. Thus it is not necessary to consider the respondent's submission that the applicant had waived his right to rely on those allegations. But as I have formed a view on the matter it might be helpful if I state it. Any doubt about the ability of a party to waive a complaint concerning bias (as to which see Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684 at 687) has been dispelled by Vakauta where the High Court held that bias could be waived. The respondent contended that, despite the fact that the applicant had objected to the member sitting on the review, the applicant's failure to challenge the Tribunal until after its decision was handed down constitutes a waiver. I do not accept that submission. No case that I have found supports it. The true position is that where a party is aware of his or her right to object to a decision-maker deciding a case on account of bias that right will be waived if the party acquiesces in the decision-maker determining the case. Acquiescence will be shown if a party with knowledge of all relevant facts makes no objection to the decision-maker taking part in the proceeding: see generally R v Byles; Ex parte Hollidge (1913) 77 JP 40, Ex parte the Parish of Ilchester (1861) 25 JP 56, Corrigan v Irish Land Commission (1977) IR 317, R v Lilydale Magistrates Court; Ex parte Ciccone [1973] VR 122, R v Justices of Richmond (1860) 24 JP 422, the cases cited by McHugh J in Vakauta v Kelly (1988) 13 NSWLR 502 at 529ff, and Vakauta on appeal. Once an objection is taken, a party's right to complain will not be waived for the reason that the party continues to participate in the case. If waiver is to be established after an objection is taken there must be some other conduct that amounts to acquiescence. To suggest that it is a requirement that a party should refuse to participate in a case or apply for a writ of prohibition or an interlocutory injunction or take some other legal proceeding against the Tribunal in order to avoid the defence of waiver is to impose an unreasonable if not intolerable burden.

So far I have dealt with two of the grounds of review relied upon. There was one other ground put forward namely that the Tribunal had incorrectly applied the applicable law in its consideration of the applicant's claim: see s 476(1)(e). Two bases for this ground were asserted. One concerned the allegation of bias and this has been disposed of. The other raised a complaint that the Tribunal had mistaken some of the evidence before it and had wrongly failed to act on the evidence led on behalf of the applicant. This complaint was not pursued at the hearing. If I might say so this was for good reason because, in my opinion, it had no prospect of success.

The result is that the application for review must be dismissed.

I certify that this and the preceding 19 (nineteen) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein

Associate: Dated: 6 October 1997

Counsel for the appellant: TV Hurley Solicitor for the appellant: Erskine Rodan & Associates Counsel for the respondents: C Gunst Solicitor for the respondents: Australian Government Solicitor

Date of Hearing: 29 August 1997 Date of Judgment: 6 October 1997