NAEB/02 v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant, a citizen of Uganda, sought judicial review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant him a protection visa. The central legal issue before the court was whether evidence led to demonstrate apprehended bias could also be used to show that the exercise of statutory power was not bona fide, in accordance with the principles established in R v Hickman; Ex parte Fox & Clinton. The court clarified that in cases where only apprehended bias is alleged, it is not permissible to review the evidence to determine if actual bias is present or if the power was exercised bona fide. The court held that since no allegation of actual bias or lack of good faith was made, the evidence presented to demonstrate apprehended bias could not be used to establish actual bias or the absence of bona fide exercise of the statutory power.

The court further elaborated on the distinction between actual bias and apprehended bias, noting that while facts demonstrating apprehended bias might also imply actual bias or lack of good faith, the use of such evidence differs significantly between the two scenarios. The court emphasised that in cases of apprehended bias, the focus is on whether a reasonable observer might have apprehensions about the decision-maker’s impartiality, whereas actual bias requires establishing the subjective state of mind of the decision-maker. This distinction is crucial as it affects how evidence is evaluated and the standard of proof required. The court concluded that the evidence of apprehended bias in this case could not be used to establish actual bias or lack of good faith, leading to the dismissal of the application and an order for the applicant to pay the respondent’s costs.