- This appeal concerned two non-citizens, Mr Jia and Mr White, who had been convicted of various, serious criminal offences.
- Mr Jia, a Chinese citizen, had been convicted of various violent offences against his de facto partner and sentenced to 6 years in prison.
- After his release from prison, the Minister declined his visa. Mr Jia appealed the decision to the Administrative Appeals Tribunal, who found that he was substantially of good character and the relationship with his partner was turbulent. The AAT directd Mr Ruddock to grant the visa.
- The Immigration Minister at the time, Philip Ruddock, appeared on the radio to discuss Mr Jia’s case. He made a number of comments that insinuated he was unhappy with the decision and that he did not want criminals to be allowed to remain in Australia. He also stated that he was exploring options, including granting Mr Jia’s visa only to cancel it on character grounds.
- He also wrote to the Tribunal expressing disappointment at how they were handling a number of cases involving non-citizens with criminal convictions.
- Mr Jia’s visa was granted and then cancelled.
- Mr Jia appealed the decision, citing actual bias on the part of Mr Ruddock (the minister).
- After various appeals, it came before the HCA with the Minister as the appellant.
- Were the comments of Mr Ruddock such to give rise to bias?
- Gleeson CJ and Gummow J held that actual bias is not just if a decision-maker has some preconceived ideas, it is that their mind is so made up that no argument will change it. (Note: this makes the threshold very high.)
- In this case, the Minister had not reached that threshold, especially as he had mentioned that he was exploring his option and needed to ‘weigh up’ some things.
- There was no actual bias.
- Furthermore, there was discussion regarding the difference between judicial and non-judicial decision makers. They approved of comments by French J in the first trial which stated that it is relevant that a Minister can have frank discussions regarding their portfolio.
- The appeal by the Minister was upheld.
“Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
Full text available here: http://eresources.hcourt.gov.au/downloadPdf/2001/HCA/17
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