I wish I had a dollar for every time a client suggested that a decision maker in their case was biased.
Apprehended bias is extremely difficult to establish.
This is so, not just in the AAT Migration and Refugee Division (formerly the Migration Review Tribunal and the Refugee Review Tribunal), but currently in the Royal Commission into Trade Union Governance and Corruption.
Often “apprehended bias” goes untested. This happens because a decision maker will decide to stand down themselves, before someone else makes any formal determination of bias.
“The test to be applied when determining whether a judge is disqualified for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide,” explains Counsel Assisting the Commission, Jeremy Stoljar SC.
In the case of Commissioner Heydon, John Lyons points out in his article in The Australian:
“There are two separate aspects to this story: one political, one legal. Politically, Heydon clearly erred by accepting an invitation to a political function. Yes, he did withdraw, 16 months after agreeing to do it and just as the media was about to publish, but the damage was done and the commission is, for the moment at least, deeply wounded. Legally, it is not so clear that he erred.”
Lyons thinks that Commissioner Heydon will fight.
I’m not so sure. I think he’ll walk – In which case, we’ll never really know whether the Commissioner erred, and whether there was apprehended bias or not.
Decisions are guided by many reasons, not just legal ones. The Commissioner will decide on Tuesday whether he stays or walks.
Read More – See John Lyons’ article at : http://www.theaustralian.com.au/national-affairs/opinion/damned-if-he-stays-damned-if-he-goes-but-dyson-heydon-will-fight/story-e6frgd0x-1227493715920