Verrill and Minister for Immigration and Multicultural Affairs (Migration)

[2024] AATA 3509

Verrill and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3509 (26 September 2024)

ReviewNumber:       2023/6254

Division	General Division
File Number	2023/6254
Re	David Verrill
APPLICANT
And	Minister for Immigration and Multicultural Affairs
RESPONDENT

DECISION

Tribunal	Senior Member R. Bellamy
Date of Decision	26 September 2024
Date of written reasons	2 October 2024
Place	Brisbane

The disqualification application is refused.

.....................[SGD]....................

Senior Member R. Bellamy

Catchwords

DISQUALIFICATION/RECUSAL APPLICATION – Actual bias – Apprehended bias – adverse media coverage – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Buntin and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1534
Charisteas v Charisteas (2021) 393 ALR 389
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20
Johnson v Johnson [2000] HCA 48
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Re JRL, Ex parte CJL (1986) 161 CLR 342, at 352
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
The Queen v Hillen [2019] NTSC 27

Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
President’s Direction – Constituting the Tribunal

REASONS FOR DECISION

Senior Member R Bellamy

2 October 2024

INTRODUCTION

1. This concerns a disqualification application on the grounds of bias. On 26 September 2024, I refused the application. Here are my reasons.

2. Mr Verrill is a citizen of the United States of America. In February 2023, his visa was mandatorily cancelled on character grounds, under s 501 of the Migration Act 1958 (“Migration Act”), because (1) he had been sentenced to a period of at least 12 months imprisonment and (2) he was serving a full-time custodial sentence.[1] He asked the Minister to revoke that cancellation. A delegate of the Minister declined to do that. He then asked the Tribunal to set-aside that decision and, instead, revoke the cancellation. The Tribunal (differently constituted) affirmed the decision. Mr Verrill sought judicial review of the Tribunal’s decision in the Federal Court. The Federal Court found jurisdictional error in the Tribunal’s decision and remitted it. The remitted matter was constituted to me and listed for hearing on 4 and 5 December 2024.  

   [1] Sections 501(3A), (6)(a) and (7)(c) of the Migration Act 1958.

3. On 3 September 2024, Mr Verrill sent an email to the Tribunal asking that I recuse myself on the grounds of a conflict of interest and “unconscious bias”. He said this arose because of the lawyers who had represented him in the Federal Court. The email was difficult to decipher. He also wanted his case allocated to a member outside Brisbane. I listed an interlocutory hearing and, in the meantime, Mr Verrill filed some material in support of his application.   

   BACKGROUND

4. Mr Verrill’s application that I disqualify myself arises primarily from reports in the media about an unrelated case. That case concerned a Mr Leo’o Olo’s application to have his visa cancellation revoked.    

5. On 8 August 2024, I made a decision in Mr Leo’o Olo’s case, which was accompanied by lengthy reasons (“the Leo’o Olo decision”). In the decision, I was critical of Mr Leo’o Olo’s lawyers for presenting a case that was substantially founded on what I considered to be unreliable evidence and unsustainable submissions. The decision was issued to the parties and later published on in accordance with the Tribunal’s normal practice. Mr Leo’o Olo has since sought judicial review of that decision in the Federal Court. That application is currently under the Court’s consideration.

6. On 13 August 2024, a media publication published an article (“Article 1”) about

   
   

   Mr Leo’o Olo’s solicitors that focussed on the Leo’o Olo decision and mentioned some other cases they had been involved in. Some passages in the decision were reported and others were not. The article contained some commentary and interpretation and was, overall, critical of the solicitors. A weekly legal publication later reported on my decision in a similar vein (“Article 2”).    

7. The legal team who represented Mr Leo’o Olo in his Tribunal proceedings represented Mr Verrill in his Federal Court proceedings, however they are not representing him in his remitted Tribunal matter. 

8. On 12 September 2024, Mr Verrill emailed a PDF of an internet article (“Article 3”), date stamped 8 September 2024. According to the Minister, the publication describes itself as:

   “Australia's most revered and disturbing law journal. For nearly 40 years, with loving attention to detail, it has chronicled the exquisite finery and the dirty linen of the legal profession”.

9. The article was about an application to the Federal Court for judicial review of the Leo’o Olo decision, and an application for judicial review of a decision I made in the case of another non-citizen, “LLQQ”, who was represented in that application by Mr Verrill’s former lawyers. The article referred to aspects of each application. There were some unusual claims about my conduct and complaints about my reasoning. The article included interpretation and commentary about the Leo’o Olo decision.

   PRELIMINARY MATTERS

10. A party asserting actual bias carries a heavy onus and the allegation must be distinctly made and clearly proven. A finding of actual bias should not be made other than in exceptional circumstances and is a grave matter.[2] Objections on the ground of actual bias have been described by the High Court as unusual, and normally unnecessary and inappropriate.[3]

    [2] Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 and 127.

    [3] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, per Kiefel CJ and Gageler J at [32].

11. Mr Verrill presented in a forthright, but not always rational, manner. He did not have the benefit of legal advice. I am satisfied that his views were genuinely held and that it was not inappropriate that he raised his concerns. Section 33(1AB) of the Administrative Appeals Tribunal Act1975 (“AAT Act”) provides that:

    “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”.

12. The objectives in section 2A of the AAT Act include providing a mechanism of review that, among other things, is fair, just, and promotes public trust and confidence in the decision-making of the Tribunal. Proceedings that are affected by bias are neither fair nor just. Decisions that are later discovered to be nullities because of bias do not promote public trust and confidence in the decision-making of the Tribunal.

    THE LAW

13. The law regarding bias in Australia is well established. The leading case is Ebner v Official Trustee in Bankruptcy[4] (“Ebner”). A more recent case, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[5] (“QYFM”) contains lengthy analysis of Ebner and other authorities. While these cases concerned judges, it was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers.[6]

    [4] (2000) 205 CLR 337.

    [5] [2023] HCA 15.

    [6] Isbester v Knox City Council [2015] HCA 20 at [22]; Ebner at [4].

14. Fairness, and the appearance of fairness, is so fundamental to our justice system that the presence of bias negates the jurisdiction of the court or tribunal.[7] It is settled law that questions of bias should be determined by the judge or decision- maker who is the subject of the objection. The first duty of any court or tribunal is to be satisfied of its own jurisdiction.[8] Accordingly, it falls to me to deal with Mr Verrill’s application.

    [7] QYFM at [26].

    [8] Ibid at [27]

15. The starting point is that I should remain constituted to Mr Verrill’s case unless there are substantial grounds for contending that bias is established. As the High Court observed in Ebner:

    “Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”[9]

    [9] At [19] – [20].

16. A decision maker is biased if they do not bring an impartial mind to a question they are charged with deciding. In QYFM, Edelman J, in the majority, framed the issue as whether a judge is “sufficiently impartial to permit justice to be done”.[10] His Honour pointed out that the only person truly capable of knowing whether actual bias is present in a person's mind is that person.[11]

    [10] At [120].

    [11] At [115].

17. I will also consider the potential for apprehended bias. The law recognises that a person may not be conscious of their bias. Indeed, Mr Verrill used the expression “unconscious bias”. Where there is unconscious bias, a decision-maker obviously cannot be relied on to identify it. The bias is identified by inference.

18. The law also recognises that it is not only crucial that justice is done, but it must also be manifestly and undoubtedly seen to be done. The appearance of bias, even if there is no substance to it, is unacceptable.

19. Unconscious bias, and the appearance of bias where there is none, are both conventionally captured by the test for apprehended bias. That test is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[12] The double use of “might" emphasises that the criterion is concerned with possibility not probability, but the possibility must be real and not remote.[13] It is convenient to deal with apprehended bias before actual bias.

    [12] Ebner at [6]; Charisteas v Charisteas (2021) 393 ALR 389 at [11].

    [13] QYFM at [37].

20. The identification of apprehended bias is a three-step process. First, it is necessary to identify the factor that it is said might lead a judge to resolve the question other than on its legal and factual merits. Second, there must be a logical connection between that factor and the feared departure from the decision maker deciding that question on its merits. Third, the apprehension has to be reasonable from the perspective of a fair-minded lay observer.[14] A lay observer is not a lawyer or a judge.[15]

    [14] Ebner at [8]; QYFM at [38]; Charisteas v Charisteas (2021) 273 CLR 289 at [11].

    [15] QYFM at [113], [172], and [273].

21. In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 at [58], the High Court considered a bias argument in the context of a refusal to grant a protection visa under the Migration Act. Per Nettle and Gordon JJ, the Court described the fair-minded lay observer as someone who, among other things:

    ·knows the nature of the decision, the circumstances which led to the decision and the context in which it was made;

    ·has a broad knowledge of the material objective facts... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the Judge; and

    ·where the statutory scheme is complex, has knowledge of at least the key elements of the scheme.

22. In Johnson v Johnson[16], per Kirby J, the fair-minded lay observer is described as a person who, among other things:

    ·would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances;

    ·would be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality;

    ·would not reach a hasty conclusion based on…remarks to the parties or their representatives…taken out of context; and

    ·is neither complacent nor unduly sensitive or suspicious.

    [16] [2000] HCA 48 at [53].

23. I proceed on the basis that the fair-minded lay observer has these attributes.

    CONSIDERATION

24. In the interlocutory hearing, after explaining the law about bias to Mr Verrill, I invited him to tell me the significance of the documents he provided and explain exactly what he was concerned about. While his was not entirely clear in his email and submissions, I have distilled the following points:

    (a)  Mr Verrill thought that Article 1 and Article 2 indicated that I could have something personal against his former lawyers in the future, and because of that I might not treat him fairly;[17]

    (b)  Mr Verrill thought that, based on Article 3, I had acted unprofessionally in the Leo’o Olo hearing;[18]

    (c)   Mr Verrill thought the final paragraph of a decision I made concerning another non-citizen, “Mr P”, indicated that I gave determinative weight to Mr P’s offending and ignored the extent to which he had rehabilitated, which led Mr Verrill to think I do not give enough weight to rehabilitation achieved by non-citizens whose visas have been cancelled, and this could adversely impact him;[19]

    (d)  I have recently been constituted to five remitted matters, including Mr Verrill’s, where the successful applicants were represented by his former lawyers in their Federal Court applications, which “sort of” looks like I am “head‑hunting their cases” because I “have an issue there”;[20] and

    (e)  Mr Verrill thought he would not get a fair decision from any member in Brisbane because we might discuss his case among ourselves and decide that he is a “troublemaker”, and we might bear a grudge against him for calling my professionalism into question in this application.[21]

    [17] Transcript, page 8, lines 31 to 34.

    [18] Transcript, page 15, lines 32 to 38.

    [19] Transcript, page 11, lines 6 to 16.

    [20] Transcript, page 16, lines 30 to 37.

    [21] Transcript, page 9, lines 16 to 21; page 19 lines 19 to 36.

25. None of Mr Verrill’s objections arose directly from the Leo’o Olo decision. In fact, he indicated that his concerns had nothing to do with that decision.[22] Further, he said he did not read the rest of the decision in Mr P’s case.[23]

    [22] Transcript, page 7, lines 5 to 11; page 8, lines 39 to 41.

    [23] Transcript, page 11 lines 26 to 27.

26. To start with, the following are matters of public record:

    ·all members of the AAT are required to take an oath or affirmation of office that they will “faithfully and impartially” perform the duties of the office;[24]

    ·one of the statutory objectives of the AAT Act is to provide a mechanism of review that is, among other things, fair and just;[25] and

    ·there is a publicly available statutory instrument, commonly referred to as Direction 110,[26] which is a policy document that applies mandatorily to decisions whether to revoke the mandatory cancellation of a visa under s 501CA of the Migration Act. It contains some overarching principles along with eight factors that a decision-maker must take into account, and allocate weight to, where relevant - five Primary Considerations and four Other Considerations. A decision-maker must then conduct a weighing exercise to reach the decision.     

    [24] Section 10B of the AAT Act.

    [25] Section 2A of the AAT Act.

    [26] Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

27. I am satisfied that the fair-minded lay observer operating in the context of this matter is aware of the ethical duties of Tribunal members and knows how Direction 110 works. It is reasonable to find that such a person is also aware that the Tribunal is the last stage of merits review. The court will not re-hear a matter but will set-aside a Tribunal decision if there was a material error in the way the decision was reached. Accordingly, applications for judicial review necessarily contain criticisms of the Tribunal, which may or may not be well-founded.

28. Further, such a person knows that courts and tribunals expect a certain standard of professional conduct from all lawyers, and when that standard is not met, it may be the subject of comment in the hearing or the decision, but that is as far as it goes. Relevant to point (a), this is illustrated by the observations of the trial judge in The Queen v Hillen[27]. In that case, an objection was raised on the ground of apprehended bias arising from comments the judge made about the defendant’s counsel in an unrelated matter. The learned Judge said:  

    “I also do not conclude that because I was critical of [the barrister] in one case this would lead to the perception that I would be biased against her in a second case and that such bias would lead to her client not receiving a fair trial. It simply does not follow logically that this would be likely to occur. I would go so far as to say that it is a somewhat novel concept. It is my view that a reasonable observer would conclude that there is no nexus between the events that took place in the previous trial and a forthcoming trial where I do not know the parties or any of the witnesses or know nothing of the facts. I conclude the reasonable observer would expect me to do my job and counsel, whoever they are would act competently.”[28]

    [27] [2019] NTSC 27.

    [28] Ibid at [40].

29. These observations would be apposite to Mr Verrill’s case if Mr Leo’o Olo’s lawyers were involved in it. They are not. This makes any connection between the future conduct of this case and the identity of his previous legal representative remote. The Minister submitted that, earlier this year, I decided in favour of a party who was represented by Mr Verrill’s former lawyers,[29] which tends to negate any suggestion of bias in relation to them and underlines the fact that each case is decided on its merits. I accept that submission.

    [29] Buntin and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1534.

30. In relation to this point Mr Verrill said, “So if they’re getting blasted for not having good enough grounds and lying and exploiting, surely that would also mean that there’s a possibility that I, myself, fit in that case”,[30] but he did not explain how that could be or how it might lead to bias against him. 

    [30] Transcript, page 9, lines 12 to 14.

31. I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to Mr Verrill’s case because of comments I made about the way his previous lawyers conducted an unrelated case.

1. With respect to point (b), Mr Verrill said he was not interested in Mr Leo’o Olo’s case: he was concerned with what Article 3 said about my conduct in the hearing which led him to think I was unprofessional. He thought the claims were made by a “reporter” and they must all be true because, if they were not, it would give me “defamation grounds” and I would “have legal proceedings against this person”.[31]

   [31] Transcript, page 12, lines 14 to 20; page 16, lines 1 to 4.

2. The article was in a publication that identifies itself a legal journal. It is accessible only by subscribers. The Minister contended that, given the publication’s description of itself, the article should not be relied upon as necessarily reporting the truth of the matters contained in it. I accept that submission. Further, the fair-minded lay person, in this context, knows that the article is based on claims purportedly made against a decision-maker by people who are dissatisfied with their decisions. Finally, Mr Verrill did not establish any logical connection between the Leo’o Olo case and his own. I am not satisfied the fair-minded observer might be influenced by Article 3 in their assessment of whether I might bring an impartial mind to the resolution of Mr Verrill’s case.

3. With respect to point (c), Mr Verrill contended that the concluding paragraph, being paragraph 86, of my decision concerning Mr P indicated that I gave Mr P’s offending determinative weight. He had not read the other 85 paragraphs of the decision and he was “not concerned with [Mr P’s] charges or what he has been to jail for”.[32] Mr P’s offending comes within the category of “the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances”.[33] To suspect bias based on one paragraph of an 86-paragraph decision would be to “reach a hasty conclusion based on…remarks…taken out of context.”[34]   

   [32] Transcript, page 11, lines 26 to 28.

   [33] Johnson v Johnson [2000] HCA 48 at [53].

   [34] Ibid.

4. Point (d) is speculative and incomplete in that it is not apparent how Mr Verrill says bias arises, and it relies on the assumptions that I can influence what matters are constituted to me and that I would want to have matters constituted to me based on which lawyers previously represented the parties. The Tribunal’s procedure for constituting cases to members is contained in a Practice Direction published on the Tribunal’s internet site.[35]

   [35] Constituting the Tribunal, President’s Direction, >

   Point (e) is also speculative. Specifically with respect to this bias application, at the conclusion of the hearing, Mr Verrill contended that, as he had questioned my integrity and professionalism, it was “human nature” that I would “have something against” him for doing that. He said his bias application “creates another bias”[36]. His contentions ignore the statutory obligations and professional ethical standards that Tribunal members routinely discharge. Further, if Mr Verrill’s reasoning were accepted, then every bias application would succeed solely by virtue of the fact that it was made. That would be intolerable.[37]

   [36] Transcript, page 19, lines 35 to 42.

   [37] Ebner at [20].

5. For the reasons set out above, I am not satisfied that there is a basis to disqualify myself from this case. Nothing in the materials, or that was raised by Mr Verrill in the hearing, establishes apprehended bias on my part or on the part of my colleagues in Brisbane. In relation to actual bias, I am satisfied that I take the obligations of my office seriously, and I am able to decide Mr Verrill’s case on its merits, without regard to irrelevant matters such as how I have decided other, unrelated cases.  

6. The application is therefore refused.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

......[SGD]........

Associate

Dated 2 October 2024

Date of hearing

20 September 2024

Date of decision

26 September 2024

Applicant

Mr David Verrill, self-represented

Respondent’s solicitor

Mr Jake Kyranis

Sparke Helmore