A tribunal member’s comment during an audio-visual link disconnection in a hearing has led to the setting-aside of their decision on the grounds of apprehended bias.
At the Administrative Review Tribunal (ART) hearing in March 2025, the applicant appeared unrepresented, with an interpreter, via audio-visual link.
The tribunal affirmed a decision not to revoke the mandatory cancellation of the applicant’s visa on character grounds.
The Melbourne hearing over two hours and 40 minutes had persistent technical difficulties. This included a disconnection of just over three minutes at the 42-minute mark, when the applicant was being cross-examined by the Minister for Immigration and Citizenship’s representative.
During the disconnection, the applicant could not see or hear what was said, with the substance of what occurred relayed to him after a decision was made.
In an exchange between the member and the Minister’s representative, the representative said: “I don’t have too many more questions left hopefully”, to which the member replied: “No no look I don’t think this is a particularly challenging matter but the interruptions are annoying”.
In the Federal Court on 7 August, Justice Elizabeth Bennett found the member’s decision was infected by a reasonable apprehension of bias, after examining the proper understanding of the impugned comment, noting that it was made about a quarter of the way into the hearing and in the absence of the applicant or a representative.
“The applicant submitted that the statement by the member reasonably admits an interpretation that the member was expressing a view that the case was not a ‘challenging’ one, meaning that the member considered that it lacked merit,” Justice Bennett said.
“The applicant said that it might be thought that the member was implicitly assuring the Minister’s representative that there was no need to ask more questions because he had already decided and that his decision was likely to be adverse to the applicant.”
The Minister and the ART submitted that the member was suggesting that the outcome of the case was not “challenging”, and was referring to the procedure or running of the case, in that it was not very involved or procedurally complicated.
They pointed to the context in which the comment was made, including that the hearing was listed for a single day, was completed within three hours even with interpreters, and had only two lay witnesses.
They also pointed to the Minister’s representative starting cross-examination of the applicant by saying “I don’t have too many questions. There’s not a lot of evidence in this matter…”, and suggested that the comment meant to convey merely that the representative did not have to stop questioning the applicant.
Justice Bennett said the court had to assess what a fair-minded lay observer would consider to have been conveyed by the impugned statement in the circumstances in which it was said.
“It is not possible to know what the member intended to convey by the impugned comments. Nor is it necessary to assess what was intended,” she said.
She said a fair-minded lay observer would be aware that the hearing concerned the operation of the Migration Act 1958 (Cth), and that the consequences of the proceedings for the applicant were significant.
“When the matter involves a self-represented litigant in the context of complicated legislation, the comment that something is not ‘a particularly challenging matter’ cannot be so easily quarantined away from the merits of the matter,” she said.
“Hearing the comment in context, I consider that the fair-minded lay observer would have understood that the member was speaking about the substantive complexity of the case before him, and not merely about logistical issues concerning the applicant’s remote connection to the hearing.”
She said they would have understood that the member was assuring the Minister’s representative that the matter was not challenging in the sense that it would not be difficult for him to reach a decision.
“In this respect, the fair-minded lay observer would have understood that the member was indicating that he had already formed a view about the complexity and therefore the difficulty of the matter, even though he was only a quarter of the way through hearing it,” she said.
Justice Bennett said that critically, the comment was made in the absence of the applicant.
“The fair-minded lay observer would have understood the comment to be a significant departure from the usual professional norms of practice,” she said.
“In combination with the meaning that they are likely to attribute to the comment, I consider that it is likely that, in all the circumstances, the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of dispute.
“It follows from these conclusions that the decision of the tribunal must be set aside, and the matter remitted for determination in accordance with law.”
Justice Bennett also ordered that the Minister pay costs.
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