The principle in Jia Legeng is extended

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While Balthar was nominated to the Tribunal by private entities, which, if the principle in Jia Legeng is extended, may not necessitate judicial-like neutrality, he was nonetheless obligated ‘to give genuine and appropriate consideration.’ Whether such consideration was given appears dubious on the facts, which are analogous to the impugned conduct in Ex parte H. Accordingly, the repeated denunciation of Adama’s evidence by Balthar is likely to evince the existence of ‘closed mind’ to the extent required by the test set out at [1].

 

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In the case of Adama v Balthar (2013) it was held that the manner in which a tribunal president conducted questioning during an appeal hearing constituted apprehended bias. This case highlights the importance of considering how each party is treated during hearings, particularly when one party is unrepresented and lacks legal expertise or knowledge.

Despite being nominated to the Tribunal by private entities – which, if applying Jia Legeng principles, may not necessitate judicial-like neutrality – Balthar was still obligated ‘to give genuine and appropriate consideration’ (Adama v Balthar, 2013). Whether such consideration had been given appears dubious on the facts presented, as evidenced by his repeated denunciation of Adama\’s evidence throughout proceedings – analogous to impugned conduct found within Ex parte H (2006).

Further amplifying this point is McHugh & Gummow JJ concluding at [50] requiring decision makers adhere to natural justice principles involving acting fairly within their duties; coupled with Johnson v Johnson (2000) establishing even where no actual pre-judgment exists on behalf of a judicial officer their conduct can still lead parties into believing they may be prejudged if not handled appropriately.

It thus becomes apparent why Balthar\’s questioning may have evinced \”the existence of closed mind\” as required by test set out at [1], necessitating findings were made in favour of appellant – emphasising yet again why fair treatment before tribunals should always take precedence over any other considerations.

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