Background
DKCQ held a Resident Return visa after previously receiving a protection visa. Following his conviction for sexually assaulting a child under 16 and a sentence of three years and three months’ imprisonment, a ministerial delegate mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). Another delegate declined to revoke the cancellation, and the Administrative Review Tribunal affirmed that decision.
DKCQ appeared before the Tribunal without legal representation, using an interpreter and an audiovisual link. When the connection dropped during cross-examination, the Tribunal member told the Minister’s representative, in DKCQ’s absence, that he did not think it was “a particularly challenging matter” but that the interruptions were annoying. DKCQ later sought judicial review, principally alleging that this exchange created a reasonable apprehension of bias.
The Court’s Holding
Bennett J upheld the apprehended-bias ground. Viewed in context, a fair-minded lay observer would likely understand the member’s remark as addressing the substantive proceeding and indicating, only about a quarter of the way through the hearing, that reaching a decision would not be difficult. Because the comment was made to the Minister’s representative while DKCQ was absent, the observer might reasonably apprehend that the member had prejudged the matter or might not approach it impartially.
The Court set aside the Tribunal’s decision and remitted the application to a differently constituted Tribunal. Bennett J addressed DKCQ’s two other pleaded grounds only briefly and conditionally, stating that she would have dismissed them if their determination had been necessary; the operative orders did not dismiss those grounds. The Court also refused leave to add a further ground raised after the hearing and ordered the Minister to pay DKCQ’s costs, subject to any contrary submissions.
Key Takeaways
- A tribunal member’s comment may establish apprehended bias when a fair-minded lay observer could understand it as expressing a premature view of the merits.
- The context mattered: the remark was made early in the hearing, to one party’s representative, while the self-represented applicant was disconnected and unable to hear or respond.
- A possible innocent interpretation does not necessarily dispel apprehended bias where a reasonable merits-based interpretation remains open.
Why It Matters
The decision underscores that communications during an interrupted remote hearing must remain confined to necessary logistics when one party is absent. Recorded proceedings and technical disruptions do not diminish the obligation to avoid remarks that could reasonably appear to reveal a preliminary view of the merits.
It also illustrates the consequence of established apprehended bias in administrative review: the affected decision must be set aside without a separate inquiry into materiality, and reconsideration must occur before a differently constituted tribunal.