Bias is difficult to establish but it was established in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.  Flick J observed:

One of the ways in which the present Appellant sought to challenge the decision of the Tribunal was to allege that the exchanges during the hearing evidenced a predetermination by the Tribunal member as to the fate of his claim…..

29                    Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion

In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion.  A reasonable apprehension of bias, it is thus concluded, has been made out.  This conclusion has been reached because:

         the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe … that you’ve been pursued by the YCL”;

         the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;

         the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and

         the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe … what you’ve told me…”.

Barbara Davidson