Case No. UKUT-00293-(IAC)

and form a view accordingly, keeping in mind that the central question is the quintessentially factual one: what actually happened at the first instance hearing? 14. In this context I refer to the decision of this Tribunal in Wagner (advocate’s conduct – fair hearing) [2015] UKUT 655 (IAC) at [12] – [13]: “[12] One particular reflection is apposite. Adjudication by the Upper Tribunal in respect of complaints relating to the conduct of a first instance hearing can be a difficult exercise. Since the FtT is not a court of record no transcript of the hearing is available. Furthermore, disagreement between the parties about the issues under scrutiny can occur. In some cases, as in Alubankudi , a party’s representative makes a witness statement which may be of considerable assistance to the appellate tribunal. The contemporaneous notes of the parties’ representatives may also be provided in certain cases. In addition, the record of proceedings, compiled by the Judge and maintained on the Tribunal’s file, may provide insight and assistance. Sometimes, as in the present case, the response of the Presiding Judge is also available. Even where some or all of these aids are available, it is impossible to recreate matters such as atmosphere, intonation, facial expression, speed of response et al; and, fundamentally, the elusive quality of demeanour cannot be reproduced on appeal. The basic handicap is that there is no audio or written record of the words used by representatives, parties, witnesses and the presiding Judge. [13] I highlight also that in cases of this genre first instance advocates have the potential to become witnesses, normally via the provision of a witness statement. As this Tribunal emphasised in BW (Witness Statements by Advocates) Afghanistan [2014] UKUT 00568 (IAC) the roles of advocate and witness are distinct and, thus, in cases where a first instance advocate becomes a witness a different representative must be instructed.” Having established the material facts, the reviewing or appellate court or tribunal must not overlook that there is an onus of proof in play: the onus rests on the appellant to prove, on the balance of probabilities, that the first instance judicial decision is infected by apparent bias. 15. In Alubankudi (appearance of bias) [2015] UKUT 542 (IAC) this Tribunal dilated on the governing legal principles in the following terms: “[6] Every litigant enjoys a common law right to a fair hearing. This entails fairness of the procedural, rather than substantive, variety. Where a breach of this right is demonstrated, this will normally be considered a material error of law warranting the setting aside of the decision of the FtT: see AAN (Veil) Afghanistan [2014] UKUT 102 (IAC) and MM (Unfairness; E&R) Sudan [2014] UKUT 105 (IAC). The fair hearing principle may be viewed as the unification of the two common law maxims audi alteram partem and nemo judex in causa sua, which combine to form the doctrine of natural justice, as it was formerly known. These two maxims are, nowadays, frequently expressed in the terms of a right and a prohibition, namely the litigant’s right to a fair hearing and the prohibition which precludes a Judge from adjudicating in a case in which he has an interest. [7] Further refinements of the fair hearing principle have resulted in the development of the concepts of apparent bias and actual bias. The latter equates with the prohibition identified immediately above. In contrast, apparent bias, where invoked, gives rise to a somewhat more sophisticated and subtle challenge. It entails the application of the following test: “The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was bias.” See Porter v Magill [2001] UKHL 67, at [103]. In Re Medicaments [2001] 1 WLR 700, the Court of Appeal provided the following exposition of the task of the appellate, or review, court or tribunal: “ The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was bias. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility … that the Tribunal was bias. The material circumstances will include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances. ” In Lawal v Northern Spirit [2003] UKHL 35, the House of Lords reiterated the importance of first identifying the circumstances which are said to give rise to apparent bias.” In [8], this Tribunal emphasised that one of the important attributes of the hypothetical reasonable observer is that he is duly informed. What this means is that the reasonable observer is aware of everything bearing on the question of the judge’s impartiality. In short the hypothetical reasonable observer is endowed with greater and fuller attributes than his jurisprudential predecessor, the innocent bystander. 16. I turn to consider another dimension of this appeal. The judicial duty of impartiality, one aspect whereof is the maintenance of an open mind, does not preclude the formation of tentative, provisional views in advance of adjudication. In AM (Fair Hearing) Sudan [2015] UKUT 656 (IAC), this Tribunal stated, at [7](iii): “The assiduous judge who has invested time and effort in reading all of the documentary materials in advance of the hearing is entitled to form provisional views. Provided that such views are provisional only and the judge conscientiously maintains an open mind, no unfairness arises.” In Arab Monetary Fund v Hashim [1993] 6 Admin LR 348, Sir Thomas Bingham MR stated at page 356: “ But on the whole the English tradition sanctions and even encourages a measure of disclosure by the Judge of his current thinking …. A judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. ” On the other hand, the English tradition – “ … certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind …. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be. ” More recently, in Singh ( supra ) the Court of Appeal added, at [35]: “ Indeed, such statements sometimes can positively assist the advocate or litigant in knowing where particular efforts may need to be pointed …. In fact, sometimes robust expression may be positively necessary in order to displace a presumption or misapprehension, whether wilful or otherwise, on the part of an advocate or litigant on a point which has the potential to be highly material to the case. ” The decision in Singh also draws attention to the importance of considering the proceedings as a whole in conducting the objective assessment of whether there was a real possibility that the Tribunal was biased: see [36].