QVFT and Secretary, Department of Immigration and Citizenship
[2012] AATA 172
•16 March 2012
[2012] AATA 172
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2007/6211; 2008/3575
Re
QVFT
APPLICANT
And
Secretary, Department of Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 16 March 2012 Place Sydney Application refused.
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Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEDURE – recusal application – apprehended bias and negligence – application misconceived – application dismissed
LEGISLATION
Freedom of Information Act 1982 (Cth) – ss 24(1), 41(1)
CASES
Re QVFT and Secretary, Department of Immigration and Citizenship [2011] AATA 763
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners v Nicholls (2011) 282 ALR 685
Re PMMC/WJPJ and Australian Prudential Regulation Authority (2009) 112 ALD 210
Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2012] AATA 113REASONS FOR DECISION
Senior Member A K Britton
16 March 2012
These reasons address an application that I recuse myself from further hearing this matter on the grounds of “apprehended bias and negligence”. That application has been made by QVFT, the applicant in the substantive proceedings.
The substantive application relates to requests for documents made by the applicant to the Department of Immigration and Citizenship (the Department) under the Freedom of Information Act 1982 (Cth) (the FOI Act). That application has largely been determined: Re QVFT and Secretary, Department of Immigration and Citizenship [2011] AATA 763. The only substantive matter that remains to be determined is whether the decisions made by the Secretary on reconsideration, following remittal by the Tribunal, to (i) refuse to release to the applicant without deletions, folio 157 of document 19 on the ground that is exempt under s 41(1) of the FOI Act (unreasonable disclosure of personal information); and (ii) to refuse to deal further with the applicant’s request for documents made in relation to application 2007/6211, on the grounds that to do so would substantially and unreasonably divert the resources of the Department (s 24(1) of the FOI Act).
DOES S 21A OF THE AAT ACT APPLY?
The applicant contends that his application should be treated as falling within s 21A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The respondent Secretary disagrees.
Section 21A of the AAT Act provides that the Tribunal may be reconstituted at the direction of the President where he or she “considers that the matters to which the proceeding relates are of such public importance” as to justify the reconstitution. It is well established that s 21A is only engaged where there is some basis on which the President might conclude that the matters to which the proceedings relate are of such public importance as to justify reconstitution (see Andelman v Administrative Appeals Tribunal [2011] FCA 815 and Mellor and Australian Postal Corporation [2010] AATA 288). There is nothing before me to indicate that the matters to which the proceedings relate are of such public importance and nor has this been suggested by the applicant. Accordingly, I propose to determine the application and apply the common law principles relating to natural justice.
GROUNDS FOR RECUSAL
The applicant contends that I should recuse myself from further hearing the substantive application on the grounds of “apprehended bias and negligence”. In detailed written submissions he analysed the offending Reasons for Decision and identified what he asserts are errors or defects in the fact-finding process and the application of the law. Among other things, he contends that I ignored relevant considerations; took into account irrelevant considerations; accepted false claims made by the Respondent and “completely ignored” his extensive submissions.
CONSIDERATION
The Tribunal is required to comply with the rules of natural justice. Among other things, they require that the Tribunal be, and be seen to be, impartial or unbiased (the bias rule).
The test of apprehended bias, one of the manifestations of the bias rule, is whether a fair-minded lay observer, having knowledge of the material objective facts, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to determining the application before it (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; Michael Wilson & Partners v Nicholls (2011) 282 ALR 685 at 692; Re PMMC/WJPJ and Australian Prudential Regulation Authority (2009) 112 ALD 210 at 213; Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2012] AATA 113).
The task of determining whether apprehended bias is established, requires:
[First] …. the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second … an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
The matters that might lead the fair–minded lay observer to apprehend that the decision-maker might be biased are not closed and include “interest, conduct, association and extraneous information” (Webb v R (1994) 181 CLR 41; (1994) 22 ALR 41). The applicant does not cite as grounds for his application, any purported interest or association on my part, or the use of any extraneous information.. Nor has he made any complaint about my conduct of the proceedings. As I understand it, he contends that my ultimate decision, or more correctly those parts not favourable to him (a number of decisions made by the Respondent were set aside or remitted for reconsideration), is so absurd and infected by jurisdictional error that the only rational explanation can be “bias and/or negligence” on my part. He argues:
Bias is a state of mind; it is intangible and cannot be seen with eyes. Brain scanning technologies such as X-Ray, MRI or CT Scans cannot reveal the bias. Therefore bias cannot be demonstrated in an authoritative manner in that sense. However, the conduct, demeanour, action or inaction in a particular manner can lead to a conclusion indicating whether a person is biased or not. In particular, bias or negligence can also reveal itself where a skilful person makes very basic kind of error of very low level. For example, if a mathematician says that 2 + 2 = 7 then one may reasonably conclude that either the mathematician is biased or he is negligent because one would not expect the mathematician to reach to a wrong conclusion on such a simple calculation unless he is biased, negligent etc.
In support he points to my decision not to grant him access to part of a document containing “personal information” in circumstances where he knows the identity of the person to whom that information relates. He also points to examples , he asserts, I overlooked arguments advanced by him and accepted those made on behalf of the Respondent.
Apart from the contention that the only possible explanation for the offending parts of the decision is bias on my part, the applicant has failed to articulate what it is that has, or might, lead me to decide his application other than on its legal and factual merits.
It appears that the applicant believes that the only reason his arguments failed is bias on my part. I do not question the sincerity of his views, but find them to be misconceived and lacking an objective basis. He provides no basis on which it could be said that a fair-minded lay observer, versed in the relevant principles, and knowing the relevant facts, might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determining of the substantive application.
JURISDICTIONAL ERROR
The applicant is of the opinion that the decision is invalidated by jurisdictional error. He provided lengthy written submissions in support of that proposition. Apart from the illogicality argument which is dealt with above, it is unclear to me how purported jurisdictional error is relevant to the contention that a fair-minded lay observer might reasonably apprehend that might not bring an impartial and unprejudiced mind to the determination of his application. To ground an application for apprehended bias it is not enough to simply assert that the offending decision involved jurisdictional error, or, that the Tribunal made the wrong decision. It is necessary to identify what it is that led the Tribunal to decide a case other than on its legal and factual merits. Available to the applicant is a right of appeal to the Federal Court, if, he believes, the decision involves jurisdictional error (s 44 of the AAT Act).
CONCLUSION
The application for recusal made on the grounds of apprehended bias and negligence is misconceived and therefore dismissed.
DIRECTIONS
(i)The matter is to be listed for further hearing at a date to be fixed by the Registrar to consider the decisions made by the Respondent on remittal.
(ii)Any party wishing to put on any further evidence must provide it to the Tribunal and to the other party within 10 days of the date of this decision. If a party decides not to provide further evidence it must advise the Tribunal and the other party, ASAP but not later than 10 days of the date of this decision.
(iii)Within 14 days of this decision both parties must file hearing certificates.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
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Associate to Senior Member A K Britton
Dated 16 March 2012
Applicant In person Solicitors for the Respondent Ms A Linacre, Clayton Utz
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