QZXS and Secretary, Department of Social Services (Social services second review) - [2021] AATA 2094

QZXS and Secretary, Department of Social Services (Social services second review) [2021] AATA 2094 (29 June 2021)
Division:GENERAL DIVISION
File Number: 2016/5690
Re:QZXS
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 June 2021
Date of written reasons: 5 July 2021
Place:Perth

On 29 June 2021, I delivered the following decision and reasons extemporaneously:
I refuse the Applicant’s request that I recuse myself from the hearing of this application.

........................[Sgd]................................................
Senior Member Dr M Evans-Bonner
Catchwords
PRACTICE AND PROCEDURE – recusal application – apprehended bias – application by Applicant for recusal of Senior Member constituted to hear substantive application – test for apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – whether a fair-minded lay observer would reasonably apprehend that the Senior Member might not bring an impartial mind to the resolution of the issues to be decided – Applicant alleged bias due to alleged conduct by Senior Member during three telephone directions hearings – Applicant seeking adjournment of substantive hearing at short notice – recusal grounds alleged by Applicant included that she felt “manipulated” by the Senior Member into proceeding with the substantive hearing – Applicant alleged Senior Member being too experienced and qualified and/or not disclosing qualifications/experience to the Applicant raised apprehended bias – protracted proceedings – DSP application lodged with the General Division of the Tribunal in October 2016 – objectives of the Tribunal considered – Applicant’s claims of bias found to be subjective – no logical connection between alleged conduct and ability to determine the issues on their merits – duty of both parties to assist the Tribunal – application for recusal refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 7, 33(1AB), 37, 38AA
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
JRL; Ex Parte CJL (1986) 161 CLR 342
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Rana v Department of Defence [2018] FCA 1642
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19
REASONS FOR DECISION
Delivered extemporaneously and later edited
Senior Member Dr M Evans-Bonner
29 June 2021
BACKGROUND

The Applicant lodged a claim for a disability support pension (DSP) with Centrelink on

14 September 2015, and on 24 November 2015 an officer of Centrelink rejected her claim (Original Decision).
The Applicant requested a review by an authorised review officer (ARO) of Centrelink, however, the ARO decided that the original decision was correct.
On 3 June 2016, the Applicant sought further review in the Social Services and Child Support Division (Tier 1) of this Tribunal. However, on 8 September 2016 the Tier 1 Member affirmed the decision of the ARO.
The Applicant then lodged her application seeking a further review by the General Division of the Tribunal (Tier 2) on 21 October 2016.
PROCEDURAL HISTORY OF TIER 2 APPLICATION
It is fair to say that the application in this matter has been protracted. Since the lodgement of the Applicant’s Tier 2 appeal on 21 October 2016, very little progress has been made towards a resolution of the application. By way of summary, there were four alternative dispute resolution (ADR) conferences held by telephone in 2017 and 2018, four telephone directions hearings (TDH) that proceeded in 2020 and 2021, and hearings scheduled for

26 November 2019 and 12 February 2020 that were vacated because the Applicant was not ready to proceed. Further hearings scheduled for 5 May 2020 and 28 October 2020 were vacated due to restrictions on in-person hearings caused by the COVID-19 pandemic.
More recently, on 29 March 2021 I issued directions for the filing of updated statements of facts, issues and contentions and any further evidence by 22 April 2021 for the Respondent and 20 May 2021 for the Applicant. I also directed that the matter be listed for a one-day in person hearing on 28 June 2021.
On 27 April 2021, I directed that the time for the Respondent and Applicant to file these submissions and further evidence be extended to 30 April 2021 and 28 May 2021 respectively.
On 18 May 2021, I again made directions to extend the time for the Applicant to file her statement of facts, issues and contentions and any further evidence upon which she proposed to rely at the hearing from 28 May 2021 to 18 June 2021.
TDH of Monday 23 June 2021
Further, on 23 June 2021 I presided over a TDH to ensure that the matter was ready to proceed to a hearing on Monday 28 June 2021 (June TDH). Prior to this TDH, the Applicant emailed the Tribunal on Friday 18 June 2021 at 3.15 pm stating, amongst other things, that she was “still collating the medical evidence” and that she needed additional time to prepare her statement of facts, issues and contentions. The email was accompanied by a medical certificate dated 17 June 2021 from the Applicant’s general practitioner requesting an extension of time for the Applicant to provide “documentation” due by 18 June 2021 (being a statement of facts, issues and contentions and any further evidence). The Applicant also advised in her email that she had been seeking legal advice and had been in contact with a private solicitor to represent her at the hearing. This was not the first time that the Applicant had indicated that she would be seeking legal advice or representation. She had indicated that she would do so on several occasions including at TDHs on 25 March 2020 and on 5 May 2020. The Tribunal previously arranged a telephone appointment with the Legal Aid Advice service for the Applicant on 12 April 2021 so that she could obtain some legal advice.
At the June TDH, I discussed with the Applicant whether she would like to be relieved from the obligation to provide a statement of facts, issues and contentions, given that her difficulty in completing one was stated by her general practitioner in the medical certificate dated

17 June 2021. I noted that the Tribunal had before it the Applicant’s application for review which stated in detail her grounds of appeal. The Tribunal also had before it a 23 page document titled “interim list of medical evidence” which the Applicant had emailed to the Tribunal on the morning of the June TDH at 11.55 am, which indicated the medical reports and other evidence the Applicant thought relevant to apply to the relevant impairment tables. It was explained to the Applicant that the Tribunal was experienced in these types of DSP applications and in assisting unrepresented applicants and so the Tribunal was familiar with the law and the issues from reviewing the Applicant’s application. The Applicant had also been able to make lengthy and articulate submissions at the June TDH (and previous TDHs), including that the Respondent had not properly considered all the evidence that she thought relevant and that the wrong law had been applied to assess the program of support requirement. The Tribunal therefore suggested that the Applicant could make these and further oral and written submissions on the day of the hearing to supplement the grounds of appeal stated in her initial application, and that the Tribunal would also accept any written submissions from the Applicant on the day of the hearing on 28 June 2021.
The Applicant stated, however, that she was not only seeking an extension to lodge her statement of facts, issues and contentions but that she was seeking an adjournment of the hearing. She said that she was “not available” for the hearing on Monday 28 June 2021 and said that the medical certificate from her general practitioner dated 17 June 2021 was “all encompassing” (transcript/13) and covered the adjournment. Later in the June TDH, I informed the Applicant that the medical certificate did not contemplate or cover the hearing dated 28 June 2021 and only referred to the documents due on 18 June 2021. The Applicant disagreed with me and said she would obtain another medical certificate.
The Applicant had also made a request for “reasonable adjustments” to be given to her in her email to the Tribunal dated 23 June 2021 at 11.55 am. Specifically, she stated that

“I require reasonable adjustment as per my rights under the Disability Discrimination Act 1992, and have provided a medical certificate in support of this” (referring to the medical certificate dated 17 June 2021). Unfortunately, as previously mentioned, the medical certificate only contemplated an extension of the 18 June 2021 deadline to provide a statement of facts, issues and contentions and any further evidence to the Tribunal. It does not specify any reasonable adjustment to be made for the Applicant.
In the June TDH, I asked the Applicant about the reasonable adjustments she was seeking but she was evasive in her answers and reiterated that she was entitled to “reasonable adjustments”. When I asked the Applicant if she was simply seeking an adjournment by way of a reasonable adjustment, the Applicant responded, “Yes, I am” (for the entire exchange regarding reasonable adjustments, see transcript/8–9).
I explained to the Applicant at the June TDH that I was endeavouring to balance her needs with the Tribunal’s objectives as expressed in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Noting the length of time taken to progress the matter, and mindful of the Tribunal’s obligations in s 2A of the AAT Act to provide a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the complexity of the matter and which promotes public trust and confidence in the decision making of the Tribunal, I suggested to the Applicant that the hearing could proceed on Monday 28 June 2021 with adjustments made to accommodate her concerns and medical conditions. These included that:
(a)the hearing on 28 June 2021 proceed by video conference so that the hearing would be more informal, and the Applicant would not have the stress of attending the Tribunal in person. I pointed out that at previous TDHs we had proceeded on the basis that the hearing should be in person because of the volume of documents before the Tribunal, but that however, the Respondent’s legal representative had collated and paginated all of the Applicant’s documents so we could be in different locations and be easily able to access the same documents;
(b)the entire day be set aside for the hearing. I advised the Applicant that although a DSP hearing would normally take approximately two hours, I had set aside the entire day for the hearing and would be happy to give the Applicant regular breaks when she thought it necessary; and
(c)I invited the Applicant to have a support person with her;
(d)the hearing start at 11:30 am, as the Applicant stated that she would have difficulty with a 10 am start due to her medical conditions and 11:30 am was the earliest time the Applicant said she would be able to commence; and
(e)as per the suggestion from the Respondent’s legal representative in her email dated 22 June 2021 at 3.50 pm, the Applicant be afforded some additional time (for example two weeks) to provide further written closing submissions with the Respondent being given a right of reply.
These adjustments were unacceptable to the Applicant and she would not comment on them (transcript/13–14). The Applicant requested that I should recuse myself from hearing her application because she was concerned about my “impartiality” and my “perceived bias”. She stated that I was “trying to manipulate her” into proceeding with the hearing on Monday, 28 June 2021.
I should note at this point that the Respondent opposed the adjournment request. The Respondent’s position was that the hearing should proceed on Monday 28 June 2021 in person.
As the TDH had already taken approximately one hour, I stood the matter down for a 10-minute break to hear the recusal application when we recommenced.
When we recommenced, the Applicant indicated that she was unhappy with three of the last TDHs, that she had “lost confidence” in me and that I had “manipulated” her, was “attempting to manipulate” her, and “a number of times throughout this direction hearing you've tried to manipulate me again and again” (transcript/10, 14, 16, 17, 20). When I asked the Applicant to expand on her “manipulation” submission she declined to do so, stating that she had “reached the end of [her] ability to concentrate” (transcript/17). The Applicant referred me to a complaint that she had made through the Tribunal’s complaints system, which included a previous recusal request with the reasons being set out in the complaint. I did not have a copy of this complaint or any response but invited the Applicant to send through any recusal request to me in writing so that I could properly consider it.
The Respondent’s representative indicated that she did not think there was any basis for recusal. However, as the Applicant did not fully articulate her reasons for recusal, I was unable to determine the recusal application. I directed that the hearing would proceed at 11.30 am on Monday 28 June by videoconference and that the recusal application would be heard first.
Hearing of 29 June 2021
By way of further background, on the morning of the hearing at 9.07 am on 28 June 2021, the Applicant emailed a further request for an adjournment to the Tribunal, attaching a medical certificate dated 27 June 2021. The medical certificate stated that she was “unfit to attend work/court for 2 days from 27/6/21 to 28/6/21”, and then stated, “looking at handing case Tang Lawyers/+ Welfare Rights & Advocacy group”. Notwithstanding the inadequacy of this medical certificate, which did not address the Applicant’s inability to participate in the hearing, the Tribunal relisted the videoconference hearing for 29 June 2021 at 11.30 am.
However, at 9.26 am on the morning of 29 June 2021, the Tribunal received an email from the Applicant in which she stated that she was unfit to attend the hearing scheduled for today on medical grounds and that she had an appointment the following day to obtain a medical certificate. Due to the absence of a valid medical certificate prior to the hearing, I advised the parties that the hearing would go ahead, commencing with the recusal application. I further suggested that, subject to any submissions, the Tribunal could provide the Applicant with a copy of the transcript and give the Applicant two weeks from when she received it to make submissions, with a corresponding right of reply for the Respondent. I note that we have not received any response from the applicant as at the commencement of this hearing this morning.
GROUNDS OF RECUSAL
Shortly after the June TDH and prior to the 29 June 2021 hearing, the Applicant sent the Tribunal submissions in an email dated 23 June 2021 at 5.07 pm. She attached a copy of a two-page complaint made through the Tribunal’s online complaints system, together with the response from the executive officer of the Tribunal who investigated the complaint. Given the length of this documentation, I have attempted to summarised below the submissions that could be regarded as the recusal grounds.
(a)In addition to the Applicant’s statements in the June TDH that I had, or was attempting to, manipulate her, in the email dated 23 June 2021 at 5.07 pm, the Applicant further stated:
I felt continually manipulated by yourself to go forward with the hearing on Monday regardless of any consideration of my medical condition and the need to ensure accuracy of evidence before the Tribunal to reach the correct or preferred decision. …
At each point of the discussion today, you found a reason to deny the application … I believe you were, and as demonstrated throughout the discussion today, set and determined, and therefore you were of a preconceived mind. I believe that you already have in mind a decision before the Hearing on Monday 28 June 2021 as you have attempted on a number of occasions to manipulate undertaking the Hearing on paper, despite my advice that you do not have all of the facts of [sic] evidence. …
You provided the paternalistic-maternalistic reasoning that it would be better for me ‘to be at home’. You have a number of times told me what is ‘best’ for me, and at other times, you made patronising comments. This does not reflect impartiality …
These submissions will be referred to as the Manipulation grounds.
(b)In summary, in the written complaint via AAT Complaints Hotline dated 30 March 2021, attached to the email dated 23 June 2021 at 5.07 pm, the Applicant claimed that I have continually refused requests to consider ADR and that I claimed ADR had occurred when it had not occurred. This will be referred to as the ADR ground.
(c)The Applicant also claimed that during TDHs, I:
(i)have “engaged inside conversations” with the Respondent’s legal representative on questions of law and process, that the Applicant “felt invisible to the process”, and that her concerns were only taken into account after the Respondent and I had “worked out their own details, and whether it had ‘utility’ for their purposes”;
(ii)refused to issue a direction requesting that the Respondent “review the medical evidence that has been provided over the years” and to order a new Medical Assessment and Job Capacity Assessment; and
(iii)“lost control and shouted” at the Applicant which “lacked respect; and was insensitive to my personal issues with PTSD and anxiety”.
I will refer to these submissions as the TDH grounds.
(d)Finally, following the Applicant’s assertion that I did not issue a direction that the Respondent further review medical evidence, the Applicant stated that she:
was not aware that Dr M Evans-Bonner was in fact the former lecturer of Administration Law [sic] at Murdoch University and the writer of an Administrative Law study guide text book. At the time I was concerned about the Member’s lack of legal knowledge of the AAT and relevant powers and laws, however, knowing this now, this could be viewed as facetious and disrespectful to an Applicant whom is void of the skills, knowledge or experience of administrative law.
This submission is equivocal, but it seems to suggest that I am too qualified to determine the application, or that I should have specifically outlined my experience and qualifications to the Applicant. This submission will be referred to as the Disclosure of Qualifications ground.
RELEVANT LAW
In Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19, Senior Member A Nikolic AM CSC, provided the following comprehensive summary of relevant legal authorities with respect to a recusal application for apprehended bias. These included: Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80; Rana v Department of Defence [2018] FCA 1642; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner); and JRL; Ex Parte CJL (1986) 161 CLR 342 (JRL). The learned Senior Member stated:
Decision on recusal application
42.In Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427, the High Court explained at [67] that allegations of apprehended bias required:
...an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the [decision maker] might not bring an impartial mind to bear upon the issues that are to be decided.
43.In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [2], Allsop CJ said:
The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. ...The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome).
44.In Rana v Department of Defence [2018] FCA 1642, Charlesworth J referred at [112]-[114] to the High Court’s two-step test in Ebner v Official Trustee in Bankruptcy … when considering claims of apprehended bias:
112.The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).
113.As the majority said in Ebner (at [8]), the application of the test involves two steps:
... First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
114.What must be shown is that the reasonable observer might apprehend that the Court, as presently constituted, might approach the determination of the legal and factual issues in the proceeding with a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet”: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another [2002] FCA 1054; (2002) 76 ALD 424 at [100] (Weinberg J).
45.Once a Tribunal Member is constituted to hear a matter, their duty is to sit and only recuse themselves if a claim of bias is ‘firmly established.’ [JRL; Ex Parte CJL (1986) 161 CLR 342 (Mason J), 364 (Wilson J), 371 (Dawson J)] To do otherwise might encourage recusal requests for an inappropriate purpose, such as trying to find someone else considered more likely to determine an application in a particular way.

As the test for apprehended bias articulated in Ebner is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide, it is relevant to state the issues relevant to the Reviewable Decision. The central issue is whether the Applicant met the eligibility requirements for a DSP in s 94 of the Social Security Act 1991 (Cth) during the Qualification Period (being 14 September 2015 to 14 December 2015). This requires a consideration of:
(a)whether the Applicant had suffered from a physical, intellectual or psychiatric impairment or impairments during the Qualification Period;
(b)whether any impairment was permanent (that is, fully diagnosed, treated and stabilised) during the Qualification Period;
(c)whether any permanent conditions attracted an impairment rating of at least 20 points under the relevant social security impairment tables; and
(d)whether the Applicant had a “continuing inability to work”.
CONSIDERATION
Manipulation grounds
Above, I gave an outline as to what happened in the June TDH and how I sought to balance the needs of the Applicant and her general request for “reasonable adjustments” with the Tribunal’s objectives under s 2A to provide a mechanism of review that is, amongst other things, quick and proportionate. At the June TDH, I also noted paragraph 4.14 of the Tribunal’s General Practice Direction, which states that the Tribunal will not grant an application for an adjournment made less than ten working days before the hearing unless there are particular and compelling reasons for the hearing to be adjourned.
The Applicant lodged her Tier 2 application, almost five years ago, on 21 October 2016. She has been afforded a more than a reasonable opportunity to file evidence and to obtain legal advice. A fair minded lay-observer would not regard my refusal to grant an adjournment and my attempts to explore options to accommodate the Applicant so that the scheduled hearing could proceed in circumstances where the application had made little progress in five years as matters that would give rise to a reasonable perception of bias. That is, a reasonable layperson would not perceive any logical connection between these matters and an inability on my part to decide the application on its merits. The Applicant’s perceptions are entirely subjective and would not, in the Tribunal’s opinion, be shared by a fair minded lay-observer. Accordingly, this ground fails.
ADR ground
The Applicant has stated that I refused her requests for the matter to be sent to ADR and that no ADR has occurred. However, the Tribunal’s records show that conferences with a Tribunal Conference Registrar took place on 10 January 2017, 20 April 2017, 16 October 2017 and 5 December 2018. I discussed the utility of another ADR conference with the parties at the TDH on 29 March 2021 and, following the parties’ submissions, decided not to refer the matter for a further conference. The Applicant does not accept that any conferences occurred in the past, and evidently did not agree with my decision not to refer the matter to a conference registrar once again. However, that is no basis for a claim of apprehended bias. A fair minded lay-observer would not perceive any logical connection that could be made between my declining to send the matter to ADR and my ability to decide the application on its merits.
TDH grounds
It is unusual in a DSP application to have a TDH, let alone several. The usual course is that following receipt of the application, the matter is sent to a conference registrar. If an agreement cannot be reached to finalise the application, the Conference Registrar will make programming orders regarding the filing of submissions and evidence leading up to the hearing. It is fair to say that the last three TDH’s have been lengthy, which is also unusual, with a standard TDH being approximately 15–30 minutes. The TDH on 5 May 2020 went for just over an hour. The TDH on 29 March 2021 went for one hour and 20 minutes. The TDH on 23 June 2021 went for approximately an hour, before resuming for approximately 10 minutes after a 10-minute break. As the notes and transcripts from these TDHs demonstrate, I endeavoured to seek submissions on each issue from both the Applicant and the Respondent. The Applicant has perceived that I deferred to the Respondent on issues of law and Tribunal processes and did not include her. This is not unusual where an Applicant is unrepresented and is not legally trained, but the Applicant was afforded the opportunity to put her views forward at each of the TDH, and she did so in detail. This is not something that could be objectively perceived as showing any bias, and a fair minded lay-observer would not perceive any logical connection between seeking the views of a legal representative on law or process and my ability to determine the issues on their merits.
The Applicant also expressed the view that the Respondent had not considered all relevant medical evidence, and that I should direct them to do so. The Respondent confirmed at the TDHs on 5 May 2020 and 29 March 2021 that all relevant medical evidence had been considered. Additionally, the Respondent complied with her obligations to file documentation pursuant to s 37 and s 38AA by filing T-documents and supplementary

T-documents with the Tribunal. Additionally, the Applicant has filed four volumes of evidence, which the Respondent has collated and paginated for her. There simply did not seem to be any utility in making a direction for the Respondent to consider materials when it was clear they had already been considered. Similarly, there would be no benefit in directing the Respondent to arrange a new job capacity assessment or medical assessment in 2021, when the issue before the Tribunal concerns the Applicant’s eligibility for a DSP during a past qualification period in 2015 with regard to medical evidence relating to that period. Further, the Applicant stated in the June TDH that she did not believe I was capable of reviewing the medical evidence against the impairment tables because I am “not a doctor” (transcript/10). The Applicant has advised that she has an appointment with her doctor on 5 July 2021 so that her doctor can review the medical evidence against the impairment tables. However, that is an exercise for the Tribunal to undertake in deciding the final application, and even if it was not, the Applicant has had numerous opportunities over the past five years, as well as this year, to provide that evidence.
The Applicant has frequently voiced her opinions and her disagreements during TDHs. Notes of the TDH on 5 May 2020 show the Applicant frequently interrupting. At the TDH on 29 March 2021 the Applicant again frequently interrupted and talked over the Respondent’s representative and the Tribunal. The notes taken by the Tribunal officer of this TDH record that Applicant called the Respondent’s representative “arrogant and antagonistic”, accusing the Respondent of poor conduct throughout the Tribunal process. At that point, I attempted to speak, but the Applicant talked loudly over me, ignoring my repeated calling of her name. I loudly instructed the Applicant to stop talking, telling the Applicant that she was not to speak over me or to interrupt. The Applicant accused me of “yelling at her”. The TDH notes record that I, “brushe[d] off comment – explains difficulty if parties talk over each other”. Again, there seems to be no logical connection between my taking control of the TDH in this manner and my ability to impartially decide the issues on their merits. This ground is based on the subjective views of the Applicant. A fair minded lay-observer is unlikely to share them.
Accordingly, the TDH grounds must fail.
Disclosure of Qualifications ground
I am not sure that I fully comprehend this ground, which was equivocally expressed by the Applicant. The initial concern seemed to be that I was not qualified or experienced enough to hear her application. However, the current concern seems to be that I am either too qualified to hear the application, or that I should have disclosed my qualifications to the Applicant. Although I did not teach Administrative Law at Murdoch University as the Applicant suggests, I did teach it at the Law Schools of the University of Notre Dame and Curtin University. I did indeed co-author a textbook on Administrative Law which was published in 2010 and 2014. It is not necessary here to go into my other qualifications or my experience, because to be appointed to the Tribunal in the first place, members must meet certain qualification requirements (see s 7 of the AAT Act). A reasonable lay-person would not perceive any connection at all between my qualifications and experience and my ability to decide the application on its merits. Indeed, it is difficult to contemplate any circumstances in which an administrative decision-maker could be too qualified or too experienced so as to cause a reasonable lay-person to perceive that the decision-maker may not be able to determine the issues on their merits.
This ground must also fail.
CONCLUSION
Most of the grounds put forward by the Applicant appear to be based on her subjective impressions of me and arise from when I have not given the Applicant what she has wanted. She is particularly aggrieved that I refused to grant her request to adjourn the hearing at the June TDH. When I attempted to explore how the hearing could proceed, the Applicant made the recusal request. Many of the grounds asserted do not have a logical basis and there is simply no connection between any of the grounds asserted and my ability to decide the issues in this application on their merits.
The grounds asserted by the Applicant do not pass the test for apprehended bias in Ebner. A fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the issues that I am to decide.
I am also concerned, given the Applicant’s resistance in progressing this matter, that this recusal request may have been a further attempt to delay these proceedings. I remind the Applicant that it is not just the Respondent who has a duty to assist the Tribunal; the Applicant also has such a duty. Relevantly, s 33(1AB) of the AAT Act provides:
A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Having been constituted to hear this application, my duty is to hear the application and to only recuse myself if a claim of bias is “firmly established”: JRL at 342, 364, 371. The Applicant’s claims of bias are subjective and lack any logical connection to my ability to consider and determine the issues in this application on their merits. The claim does not meet the threshold of being “firmly established”.
DECISION
I refuse the Applicant’s request that I recuse myself from the hearing of this application.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..[Sgd]......................................................................
Associate
Dated: 5 July 2021

Date of hearing: 29 June 2021

Applicant: Self-represented but no appearance

Solicitors for the Respondent: Ms J Forsyth, Mills Oakley Lawyers

Date of hearing:	29 June 2021
Applicant:	Self-represented but no appearance
Solicitors for the Respondent:	Ms J Forsyth, Mills Oakley Lawyers