Snow and Secretary, Department of Social Services

[2022] AATA 366

Snow and Secretary, Department of Social Services [2022] AATA 366 (18 January 2022)

Division:GENERAL DIVISION

File Number(s):      2018/3716

Re:Christopher Aslin Snow

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:18 January 2022

Date of written reasons:         2 March 2022

Place:Adelaide

The Tribunal refuses the applicant’s application that the presiding member recuse himself.

………………[Sgnd]……………………

Senior Member Dr N A Manetta

PRACTICE AND PROCEDURE – recusal application – apprehended bias – application by applicant for recusal of Member assigned to hear application – previous application by applicant to recuse the Senior Member refused – whether reasonable bystander would infer the Member may not decide issues between the parties impartially – application for recusal made after preliminary reasons circulated – reaching particular conclusion in decision whether right or wrong and supporting conclusion with reasons does not support a submission of apparent bias – other grounds of application considered – application for recusal refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Administration) Act 1991 (Cth)

Cases

Re Snow and Secretary Department of Social Services [2020] AATA 417

REASONS FOR DECISION

Senior Member Dr N A Manetta

2 March 2022

1. On 18 January 2022, I refused the applicant’s application that I recuse myself. Neither party wished me to read out the reasons I had ready. I indicated that I would provide them to the parties in writing in due course. What follows is my brief reasons for refusing the application.

2. The applicant in this matter, Mr Christopher Aslin Snow, has formally requested that I recuse myself. Mr Snow made this application after I circulated my interim reasons in this matter on 29 October 2021. These interim reasons were prepared in connection with certain preliminary questions that had been set down by me for determination.

3. As a matter of background, I note that Mr Snow has made one earlier application that I recuse myself, and on that occasion extensive written reasons were prepared and delivered: see Re Snow and Secretary Department of Social Services [2020] AATA 417. As I have already mentioned, I also delivered interim reasons dealing with certain preliminary questions in relation to which I had received evidence and heard argument.

4. I do not need to set out any of the background given these two sets of reasons. I think it is also sufficient if I express myself in a summary way.

5. In my opinion, Mr Snow needs to point to conduct, however inadvertent, from which a reasonable bystander would infer that I might not decide the issues between the parties impartially. This straightforward formulation encapsulates the essence of the “apprehended bias” test, which forms part of the rules of procedural fairness governing the Tribunal.  

6. In my opinion, my conduct of this matter would not lead a reasonable bystander to infer that I might not decide the issues between the parties impartially.

7. I now explain in brief terms my reasons for this conclusion.

8. Mr Snow made written submissions on this matter but expressly declined the opportunity to address me orally.

9. The interim reasons reveal that Mr Snow has been partially successful, but partially successful only, in his application before the Tribunal. Clearly enough, the fact that I have not decided all issues in Mr Snow’s favour cannot in and of itself give rise to any apprehension of bias against him as a party.

10. I note that the critical conclusion of fact I reached in my interim reasons (concerning the date when an internal review was first requested by Mr Snow) was based on my evaluation of the evidence Mr Snow gave and my application of what I took to be the relevant legal principles. I may or may not be right in my conclusions; but my reaching a conclusion, whether right or wrong, and supporting it with reasons (as occurred in this case) does not support a submission of apprehended bias. In particular, having re-read my reasons, I do not believe there is anything arbitrary in them that would lead a reasonable bystander to suspect that I might not hear and determine Mr Snow’s application impartially.

11. After the interim reasons were delivered, Mr Snow requested a further opportunity to address me on the law and forwarded submissions to me that were unsolicited. I declined to reopen the question of law when he made the request that I consider this material.  Having since read Mr Snow’s unsolicited submissions, I have decided that I can consider them conveniently and shall call upon the respondent for its views if that proves necessary. 

12. But that does not change, of course, the fact that I initially declined Mr Snow’s request. That is a matter of fact. The question then is whether a reasonable bystander would regard my initial refusal of Mr Snow’s request as evidence of apprehended bias.  That hypothetical reasonable bystander would know that in this case there had been a full opportunity afforded to both parties to prepare for the hearing, adduce evidence, and argue their respective cases on the preliminary questions. It is unusual for the Tribunal (or a court) to allow a party who has received an adverse ruling to re-open arguments and present fresh arguments when a full opportunity to address the Tribunal (or court) has been given. Furthermore, the respondent, through Mr Nocera, opposed Mr Snow being granted leave to present further material; and so I note that I was not faced with a consent application. I was required to decide what was the preferable course and I decided against Mr Snow.

13. I appreciate that Mr Snow was unrepresented, but he did have a full opportunity to argue his case and to seek legal and other advice as to how best to present it. I do not think a reasonable bystander would believe that my initial refusal to allow Mr Snow a further opportunity to provide submissions was evidence of apprehended bias against him; rather, it was an instance of the Tribunal trying to be fair to both parties: see, for example, s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

14. I also accept that the preparation of my interim reasons took a long time. The time-frame for their preparation fell well outside the normal time frame for the delivery of reasons that the Tribunal seeks to follow. But I do not believe that the delay in the delivery of reasons in this case affords any basis for inferring that I may have been biased in favour of, or against, either Mr Snow or the respondent. It is an entirely neutral fact. 

15. Mr Snow has also pressed me with a submission that he wished me to order a review of the assessment of his file in the respondent’s Department over a number of years. He referred to section 126 of the Social Security (Administration) Act 1991 (Cth) in this connection. He has pointed out that my interim reasons do not refer to his submission. The interim reasons were intended, however, only to address the preliminary questions I had set down. Any formal submission Mr Snow wishes to make about s 126 will be dealt with as part of the final reasons I shall deliver in due course. In my view, there is no question of apparent bias arising from not addressing Mr Snow’s submission in respect of s 126.

16. All in all, I do not think Mr Snow has shown any substantial case of apprehended bias. Had I been in doubt, I would have been at liberty to recuse myself “out of an abundance of caution”, so to speak, and I refer to para [51] of my earlier reasons in this regard. But that possibility does not arise here in my view.   

17. Accordingly, I have decided not to recuse myself. 

1.       I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

............................[Sgnd]...............................

Legal Administrative Assistant

Dated: 2 March 2022

Date of hearing:	10 January 2022 & 18 January 2022
Applicant:	Self-Represented
Advocate for the Respondent:	Domenic Nocera, Sparke Helmore