ALO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-07-08|Before: Anderson J

The appeal is dismissed.
The appellant will pay the first respondent's costs, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 The appellant appeals from a decision of the Federal Circuit Court, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision of the Federal Circuit Court is ALO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 228 (FCC Judgment). The decision of the Tribunal is 1820814 (Refugee) [2019] AATA 1632 (Reasons). The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa.

ground 2 - ALLEGED error in relation to complementary protection

The appellant's submissions 4 The appellant submits that the Tribunal found him to be credible in relation to his past experiences, including death threats, graffiti on his house, instances of vilification and mobbing of his home in 2012: Reasons, [41]. Notwithstanding these findings, the Tribunal concluded that the appellant did not face a real risk of significant harm on return to Pakistan for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) and made the following findings at [57] of the Reasons: I refer to my findings above in considering the real chance test. I am not satisfied that the applicant has established that there is a real risk that he will [be] arbitrarily deprived of his life as a necessary and foreseeable consequence of him being returned to Pakistan. I have found that the applicant has established that he has experienced and would continue to face some entrenched discrimination, harassment and societal vilification if he was to return to Pakistan. However, as noted above, in the particular circumstances of this applicant's long term and accepted experience in Golarchi, I consider that the level of discrimination, harassment and vilification he has faced and would be likely to face if he returns to his home is moderate, in the form of some social discrimination, harassment and vilification and sporadic incidents of hate speech and abusive writing on external walls of his home. I have considered the applicant's evidence and my findings, and I do not consider that the level of discrimination, harassment and vilification which he will encounter in the future is properly considered as causing and intending to cause the applicant 'severe' pain or suffering, whether physical or mental, that will be intentionally inflicted on the applicant, or that they are at a level such that they cause him extreme humiliation. I acknowledge that the experiences of discrimination, vilification and harassment have caused and will cause the applicant some mental and physical distress and humiliation. I consider that the moderate discrimination, harassment and vilification faced by the applicant if he is returned to Pakistan would be at a level which he has faced throughout his life, and despite which he has prospered. Bearing in mind his own evidence, and taking into account his physical location in Pakistan, his established standing within his community and his lifetime experience, I am not satisfied that the level of pain or suffering the applicant will face (as he has in the past) is at a level which could be regarded as cruel or inhuman in nature, or as cruel or inhuman or degrading treatment or punishment causing or intended to cause severe pain or suffering or extreme humiliation, even when considered cumulatively 5 The Tribunal stated at [58] of the Reasons: I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm (including being arbitrarily deprived of his life or subjected to cruel or inhuman or degrading treatment or punishment), as a necessary and foreseeable consequence of him being returned to Pakistan 6 Section 5(1) of the Act defines "cruel or inhuman treatment or punishment" as follows: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 7 The appellant submits that: (1) paragraph (a) of the definition above requires "severe pain or suffering" to be made out; and (2) paragraph (b) requires only that "pain or suffering" be made out, where it is inflicted in circumstances where "the act or omission [of the infliction of the pain or suffering] could reasonably be regarded as cruel or inhuman in nature". 8 The appellant submits that the Tribunal misunderstood the definition of "cruel or inhuman treatment of punishment" to be limited to instances of severe pain and suffering. This, the appellant submits, is evident at [57] of the Reasons where the Tribunal stated: (1) "I do not consider that the level of discrimination, harassment and vilification which he will encounter in the future is properly considered as causing and intending to cause the [appellant] "severe" pain or suffering"; and (2) "I am not satisfied that the level of pain or suffering the [appellant] will face … is at a level which could be regarded as … causing or intending to cause severe pain or suffering". 9 In the appellant's submission, the Tribunal failed to consider whether the appellant may face pain or suffering at a lower level than "serious". The appellant submits that, on the facts accepted by the Tribunal, the appellant has suffered to a genuinely troubling degree. In this case, the appellant submits that the correct question to ask, and one which the appellant might well have satisfied, was whether the circumstances of the act(s) or omission(s) of the infliction of that suffering could reasonably be regarded as cruel or inhuman in nature. It follows that, in the appellant's submission, the Tribunal failed to apply the correct definition of "cruel or inhuman treatment" at paragraph (b) of s 5(1) of the Act. 10 Alternatively, the appellant submits that the Tribunal incorrectly elided the components of the definition set out at paragraph (b) of the definition. The appellant submits that, in the final sentence of [57] of the Tribunal's Reasons, the Tribunal stated that "I am not satisfied that the level of pain or suffering the [appellant] will face … is at a level which could be regarded as cruel or inhuman in nature." However, in the appellant's submission, the test in paragraph (b) did not require the pain or suffering of the appellant to be at a level which could be regarded as cruel or inhuman in nature. Rather, the appellant submits that test is directed at pain or suffering of any calibre, inflicted by an act or omission which, in all of the circumstances, could reasonably be regarded as cruel or inhuman in nature. In the appellant's submission, the Tribunal failed to properly construe or apply that test.

The Minister's submissions 11 The Minister submits that the Tribunal did understand the requirements of paragraphs (a) and (b) of the relevant definition in s 5(1) of the Act and applied the correct test. This is apparent, in the Minister's submission, when the passage the appellant complains of in the Tribunal's Reasons at [57] is read in the context of the surrounding paragraphs, and reading the passage not with an eye finely attuned to error. 12 The Minister submits that the Tribunal began its discussion by setting out the correct statutory definition that it was to apply in respect of "cruel or inhuman treatment or punishment": Reasons, [55]. This, the Minister submits, is relevant because it demonstrates that the Tribunal understood the starting point for the discussion that immediately followed in the Reasons. 13 The Minister submits that it is apparent from a fair reading of [57] of the Reasons that the Tribunal set out findings that it considered to be relevant to an assessment of cruel or inhuman treatment under s 36(2A)(d) of the Act, and then sought to deal with the two limbs of the definition in paragraphs (a) and (b) separately. The Minister observes however that, perhaps unfortunately, it appears that the Tribunal also sought to deal with the criteria for "degrading treatment or punishment" under s 36(2A)(e) as well in [57] of the Reasons. This did not, however, in the Minister's submission, lead the Tribunal into error. 14 The Minister submits that, fairly read, [57] of the Tribunal's Reasons does not misunderstand the two limbs of the definition of "cruel or inhuman treatment or punishment" but seeks to draw a conclusion on both paragraphs (a) and (b) in the last sentence along with a finding on "degrading treatment or punishment". The Minister submits that the Tribunal properly understood the two limbs of the definition of cruel or unusual treatment under s 5(1) of the Act and further made a finding on "degrading treatment or punishment" under s 36(2A)(e) of the Act. For this reason, the Minister submits that the Tribunal did not misunderstand the statutory test or elide the components of the definition in paragraph (b) of s 5(1) of the Act.

Consideration of Ground 2 15 I am not satisfied that the Tribunal fell into jurisdictional error in making the findings that the appellant did not face a real risk of significant harm on return to Pakistan for the purposes of s 36(2)(aa) of the Act. The Tribunal did not misconstrue or misapply the definition of "cruel or inhuman treatment or punishment" under paragraphs (a) or (b) of s 5(1) of the Act. This is apparent when one considers not simply the passage of [57] of the Tribunal's Reasons complained of by the appellant but when considering [57] of the Reasons in the context of the paragraphs of the Reasons leading up to the findings and conclusions stated in [57] of the Tribunal's Reasons. 16 First, the Tribunal began its consideration of complementary protection by identifying the relevant statutory definitions in ss 36(2)(aa), 36(2A) and the further definitions of "cruel or inhuman treatment or punishment", "degrading treatment or punishment", and "torture" as defined in s 5(1) of the Act: Reasons, [50] and [51]. The Tribunal's Reasons stated at [50]-[51]: Complimentary protection 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act. Section 36(2)(aa) refers to a 'real risk' of an applicant suffering significant harm. The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. 17 The Tribunal at [55] of the Reasons set out in full the definition of "cruel or inhuman treatment or punishment" as defined in s 5(1) of the Act and, at [56] of the Reasons, set out the definition in full of "degrading treatment or punishment" as defined in s 5(1) of the Act. This is significant in that it identifies the starting point for the Tribunal's consideration of the findings and conclusions which the Tribunal made in the subsequent [57] of the Reasons. The Tribunal was plainly aware of the statutory definition to be applied. The Tribunal understood that this definition was the starting point for its consideration of complementary protection. 18 Second, the Tribunal at [57] of its Reasons set out findings that it considered to be relevant to an assessment of "cruel or inhuman treatment or punishment" under s 36(2A)(d) and then also dealt with the criteria for "degrading treatment or punishment" under s 36(2A)(e). It may have been preferable for the Tribunal to have expressed its reasons for the findings which it made in respect to "cruel or inhuman treatment or punishment" under s 36(2A)(d) by dealing with each limb of the definition in s 5(1)(a) and (b) separately and then in a separate paragraph consider its findings in respect to "degrading treatment or punishment" under s 36(2A)(e). However, that does not mean that the Tribunal improperly construed or misapplied the relevant test. 19 The Tribunal dealt with paragraph (a) of the definition in s 5(1) of "cruel or inhuman treatment or punishment" by stating at [57] of its Reasons that it did not "consider that the level of discrimination, harassment and vilification which [the appellant] will encounter in the future is properly considered as causing and intending to cause the [appellant] 'severe' pain or suffering, whether physical or mental, that will be intentionally inflicted on the [appellant] …". This, plainly, was a finding under paragraph (a) of the relevant definition in s 5(1) of the Act. 20 The Tribunal then at [57] of its Reasons set out further findings about the treatment the appellant is likely to experience before dealing with paragraph (b) of the definition in s 5(1) of the Act. In respect of paragraph (b), the Tribunal said it was "not satisfied that the level of pain or suffering the [appellant] will face (as he has in the past) is at a level which could be regarded as cruel or inhuman in nature …". The reference to "level" is reflective of the degree to which the Tribunal found the acts set out did not amount to a suffering that could reasonably be regarded as cruel or inhuman in nature. 21 The balance of the Tribunal's Reasons at [57] then explain further the Tribunal's Reasons under paragraph (a) of the definition in s 5(1) of "cruel or inhuman treatment or punishment" under s 36(2A)(d) and then go on to making findings with respect to "degrading treatment or punishment" under s 36(2A)(e). 22 For these reasons, I find no jurisdictional error in the Tribunal's consideration. Ground 2 must be rejected.

Appellant's submissions 23 The appellant submits that the delegate, in assessing the appellant's protection visa application, had regard to certain criminal charges against the appellant and certain investigations for the purposes of assessing whether grounds for refusal of the application arose under s 36(1C) of the Act. Ultimately, as the appellant had not been "convicted by final judgment of a particular serious crime" for the purposes of s 36(1C) at the time of the delegate's decision, the delegate made no findings in respect of that criterion. 24 The appellant submits that the Tribunal had access to information which was before the delegate in relation to the criminal investigation against the appellant which included the following, which I will refer to as the "2018 Emails": (1) an email of 15 March 2018, sent by a detective with the Dandenong police to an officer of the Australian Border Force, noting that he was "investigating a male person loitering around local schools [who] has tried to physically approach children" and naming the appellant; (2) an email of 29 June 2018, sent by the delegate to the police informant investigating the charges against the appellant, seeking to establish whether he had been convicted of an offence; (3) an email of 2 July 2018 from the informant to the delegate, noting that the appellant would be arrested and interviewed on 10 July 2018 for three sexual assault charges involving three different victims; (4) on 15 October 2018, a member of the Tribunal's registry staff emailed the Department's liaison team to clarify the status of the charges. The Department responded that it was "not in possession" of the information requested; and (5) on 31 October 2018, the Tribunal made an inquiry directly of the informant regarding the charges, noting that "these issues are relevant to the matter currently before the Tribunal". An out of office reply was received and it appears the inquiry was taken no further. 25 The Tribunal then referred to the charges at [26] and [27] of its Reasons as follows: The Department's file contained information about some serious criminal charges being faced in Australia by the applicant which could potentially prohibit his eligibility for a protection visa. There were three charges of [specified offence] pursuant to [specified section] of the Crimes Act. According to that section, a person who commits an offence under this section is liable to Level 5 imprisonment (10 years maximum). Despite requesting updated information about the charges, I did not receive any further information about them prior to the hearing. At [the] hearing, the applicant advised that he is fighting those charges and they have been listed for a [contested hearing]. According to s.36(1C), a criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: is a danger to Australia's security; or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. The charges faced by the applicant are potentially 'a particularly serious crime' (which includes, as described in s.5(1), an offence against a law in Australia where the offence involves violence against a person and which is punishable by imprisonment for a fixed or maximum term of not less than three years.) Similar provisions have effect in relation to s.36(2)(aa) when considering complementary protection. As at the date of my decision, those charges have not been resolved and the applicant has not been "convicted by a final judgement" of any offence. I therefore do not make any finding about section 36(1C) and it does not form part of my reasons for making the decision in this review. 26 In respect of the Tribunal's Reasons at [26] and [27], the appellant makes the following submissions: (1) The Tribunal misunderstood its jurisdiction to encompass s 36(1C). Pursuant to s 500(4)(c), decisions made under s 36(1C) are not reviewable under Part 5 or 7 by the Migration and Refugee Division of the Tribunal and are reviewable only by the Tribunal in its General Division. The charges were irrelevant to this review. (2) The Tribunal had regard to the information before the delegate relating to the criminal investigation against the appellant. (3) The Tribunal directed further inquiries to be made as to the status of the charges whilst the matter was on review. (4) The Tribunal regarded the charges against the appellant as serious. (5) The Tribunal did not say that it put out of mind, or even placed no weight on, the prejudicial information in relation to the balance of its decision, saying only that it had not pursued consideration of the disqualifying criteria in s 36(1C). (6) The Tribunal did not say in its Reasons that it had explained to the appellant the totality of the information before it, only that it had discussed with him the charges (which is a narrower subset of the information that was before it, apparently not extending to the factual allegation of loitering around school grounds). 27 In the circumstances of the matters arising out of the Tribunal's Reasons at [26] and [27], the appellant submits that a fair-minded lay observer might apprehend that the Tribunal might not have brought an impartial and independent mind to the fair resolution of the issue to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[7]. 28 The appellant relies upon the observations of Nettle and Gordon JJ (with whom Gageler and Edelman JJ separately agreed) in CNY17 v Minister for Immigration [2019] HCA 50; 375 ALR 47 (CYN17) at [92] and [93] as follows: What might lead the IAA to decide the appellant's case otherwise than on its merits? The presence of prejudicial material which was irrelevant to the question before the IAA and which the IAA was mandated to consider. As Deane J said in Webb, "knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias." Is there a logical connection between this and the feared deviation from deciding the case on its merits? Yes. The material was not relevant to the IAA's task. If it influenced the IAA, whether consciously or subconsciously, then the IAA would deviate from deciding the case on its merits. In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one. It is therefore necessary to consider the facts of the case in light of the statutory context. (Citations omitted.) 29 The appellant submits that the Tribunal took a clear interest in the criminal proceedings against the appellant, directing its own inquiries to the informant and dedicating passages of its decision to the matter. The appellant submits that the Tribunal did not say that it had put out of mind the prejudicial information. The appellant submits that, rather, it assessed that information as not sufficient to engage the disqualifying criterion in s 36(1C) of the Act. 30 The appellant submitted that the Federal Circuit Court was "plainly wrong" to treat the "extent" of the prejudicial information, in the sense of its "volume of pages", as probative of the answer to this ground of review. 31 The appellant submits that the Federal Circuit Court was also plainly wrong to place weight on the Tribunal's mention of what use it had made of the prejudicial material. The Tribunal said only that it did not apply the prejudicial material to a determination whether the disqualifying criterion in s 36(1C) was engaged. The appellant submits that the Tribunal did not say that it "put out of mind" or even "placed no weight" on the prejudicial material in relation to the rest of its task. 32 The appellant submits that the Federal Circuit Court was wrong to find there had been a "waiver" of the entitlement to succeed on this point in Court. 33 The appellant submits that, whilst the Tribunal was correct to mention the existence of the charges to the appellant during the hearing, the Tribunal's Reasons at [26] suggest that the Tribunal's focus with the appellant was on the charges themselves. The Tribunal did not say that it discussed with the appellant the totality of the prejudicial information which sat behind the charges. The appellant submits that it was not correct to say that the appellant was aware of the totality of the circumstances giving rise to the apprehension of bias.

The Minister's submissions 34 The Minister accepts that the leading case on bias is the High Court's recent decision in CNY17. In addition, the Full Court of this Court has delivered judgments in a number of subsequent proceedings in which bias has been alleged. The Minister submits that the following core principles can be derived from the authorities: (1) The applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions the decision-maker is required to decide: CNY17 at [17] (Kiefel CJ and Gageler J), [56] (Nettle and Gordon JJ), [132] (Edelman J); FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 (FSG17) at [32(b)]; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 (MBJY) at [33]; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (BYX17) at [3]. (2) The fair-minded observer is taken to know "the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has 'a broad knowledge of the material objective facts … as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]'": CNY17 at [58]. Further, the fair-minded observer, "though not a lawyer, is taken to know both the nature of the decision-maker and the nature of the process that the decision-maker is required to undertake": MBJY at [33]. (3) The test involves two steps: identifying what it is that might lead a decision-maker to decide a case other than on its legal and factual merits; and secondly, articulating a logical connection between the identified thing and the feared deviation from deciding the case on its merits: CNY17 at [57] (Nettle and Gordon JJ), cited in BYX17 at [33]; MBJY at [35]. (4) Whether the fair-minded observer would apprehend bias will always be a factual assessment to be decided in the legal, statutory and factual context of the case: MBJY at [37], citing Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [21] (Kiefel CJ, Bell, Keane and Nettle JJ); BYX17 at [35]. (5) An aspect of that context is the particular decision-maker in question. The "content as to what is expected of the decision-maker will often be different in the case of quasi-judicial proceedings compared to a person making a purely administrative decision": MBJY at [36], citing Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [7]. (6) It is possible, in certain circumstances, for a fair-minded observer to apprehend a subconscious effect on the mind of a decision-maker even if material is consciously and expressly put aside: FSG17 at [32(d)]. This is an aspect of the application of the law to the context of the particular case. (7) The question whether the reasons of the decision-maker may be taken into account in determining bias is complex: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; 169 ALD 579 at [106]. However, the current state of the law appears to be that: at least where the complaint is of apprehended bias in relation to the decision to be made (rather than a complaint in relation to the process that was followed) the contents of a decision may be brought to account as part of the context in determining whether from the perspective of a fair-minded lay observer there was a reason why the decision may not be independent and impartial: MBJY at [50]. (8) It is possible for a departure from impartial decision-making to be established where the decision-maker is shown to have knowledge of a prejudicial but inadmissible fact or circumstance that gives rise to an apprehension of bias on the basis that the decision-maker will be influenced by that fact. This will depend on whether the material, in the context of the case, is of a kind that may affect the decision-maker, including subconsciously: Webb v The Queen (1994) 181 CLR 41 (Webb) at 74; CNY17 at [57], [70], [92], [134]; MBJY at [51]. (9) It is relevant and ameliorates the potential prejudicial effect of material if the decision-maker ventilated the material with the person at a hearing: FSG17 at [36] and [44]; Webb at 53. It is also relevant, though it cannot determine the issue, that the decision-maker expressly sets aside prejudicial material from consideration: FSG17 at [39]-[40]. (10) It is not sufficient to show simply that prejudicial and inadmissible material was before the decision-maker. Rather, it is necessary to show that the fair-minded observer might think that the decision-maker might lead to the decision-maker being influenced such as to depart from a neutral evaluation of the merits: MBJY at [52]. 35 The Minister accepts that the 2018 Emails were prejudicial in character because they revealed that the appellant had been charged with serious sexual offences. The Minister also accepts that the material was not relevant to the Tribunal's task, because it was not part of the Tribunal's task to consider s 36(1C) in a review under Part 7. The Minister submits that, notwithstanding that mistake, there was no jurisdictional error, because the Tribunal ultimately made no finding on the s 36(1C) question. 36 The Minister submits that the material that was before the Tribunal would not lead a lay observer, in the circumstances of the present case, to consider that there might have been a subconscious effect on the mind of the Tribunal, leading to an apprehension of bias, for the following reasons. 37 First, the Minister submits that it is apparent from the Tribunal's decision that it raised the criminal charges with the appellant, and allowed him to respond to the material: see Exhibit A.1, being the transcript of the hearing before the Tribunal Member on 1 November 2018 (Tribunal Transcript) at pp. 21-22. The Minister submits that the ventilation of the prejudicial material at the hearing substantially reduces the risk of apprehended bias in the mind of the lay observer: FSG17 at [36]-[44]. The Minister submits that the Tribunal Transcript of the hearing makes plain that the Tribunal was interested in the outcome and the process in respect of the charges rather than the investigation itself. 38 Second, the Minister submits that the Tribunal expressly set aside the criminal charges material for the purpose of its decision. The Minister submits that the Tribunal stated at [27] of its Reasons that it made no findings about s 36(1C) of the Act and that the criminal charges material "does not form part of my reasons for making the decision in this review". The Minister submits that the Federal Circuit Court correctly accepted that the Tribunal "expressly disavowed" the material or expressly did not rely on the material: FCC Judgment at [40] and [41]. 39 Third, the Minister submits that the Tribunal was abundantly clear about the material it had been given, its own actions after considering the material (conducting some limited further investigations), that it had raised the material with the appellant, why it considered the material to be relevant, and then why it had set the material aside from the decision. This transparency, the Minister submits, stands against any concern of unconscious influence of the material in the mind of the lay observer. 40 Fourth, the Minister submits that the statutory scheme in this case is important and stands against a finding of bias. The Minister submits that, in contrast to the statutory scheme in CNY17, in the present case, under Part 7, the Tribunal was obliged to hold a hearing and was obliged to put adverse information to the appellant. In this case, the appellant was able to present to the Tribunal whatever relevant evidence he wished. These features, in the Minister's submission, distinguish this case from CNY17 and reduce the risk of bias. 41 Fifth, the Minister submits that the nature of the decision-maker is relevant. The Minister submits that, as Allsop CJ noted in MBJY at [3]: The Tribunal under its constitutive legislation is an independent quasi-judicial body of skill and stature. A fair-minded lay observer would be taken to appreciate such matters. The stature and independence of the Tribunal is a feature of importance in the review of, and public confidence in, Commonwealth decision making. (Citations omitted.) 42 The Minister submits that the fact that it was the Tribunal making the decision in this case, by contrast with other cases, reduces the risk of bias.

Consideration of Ground 3 43 I accept the submissions advanced by the Minister in respect of ground 3. 44 At [26] and [27], the Tribunal's Reasons expressly stated: The Department's file contained information about some serious criminal charges being faced in Australia by the applicant which could potentially prohibit his eligibility for a protection visa … Despite requesting updated information about the charges, I did not receive any further information about them prior to the hearing. At hearing, the applicant advised that he is fighting those charges and they have been listed for a [contested hearing]. … As at the date of my decision, those charges have not been resolved and the applicant has not been "convicted by a final judgement" of any offence. I therefore do not make any finding about section 36(1C) and it does not form part of my reasons for making the decision in this review. (Emphasis added.) 45 Those paragraphs make plain that the Tribunal raised the criminal charges with the appellant and gave the appellant an opportunity to respond to the material. In addition, having ascertained that the charges had not been resolved and that the appellant had not been "convicted by a final judgment" of any offence, the Tribunal expressly stated that the Tribunal made no findings and that the criminal charges did not form part of the Tribunal's Reasons for making its decision. Furthermore, I received into evidence (without objection) the Tribunal Transcript and marked it as Exhibit A.1 in this proceeding. The Tribunal Transcript was annexure "SV-1" to the Affidavit of Ms Sanmati Verma affirmed 14 June 2021 in this proceeding. 46 Pages 21 to 22 of the Tribunal Transcript recorded the following: MEMBER: Thanks. In the Department file there's information about you having been charged with some offences while you've been in Australia. I'm not sure if your representative has put an asterix next to this, but one of the criteria for a protection visa is that a person has not been found guilty of a serious criminal offence or serious Australian offence. I have made inquiries of the Department as to whether they had any outcome, because it was due to be heard in September, but they don't anything, or they say they don't know anything. Are you able to tell me what happened? INTERPRETER: Yes, that case is still ongoing. MEMBER: Okay. INTERPRETER: We are fighting that case. We've had three hearings so far … MEMBER: All right. You don't need to tell about the - - - INTERPRETER: Yes. MEMBER: I was really only interested in the outcome and the process. MS HENNER: So because he's - yes, because he contested the charges, my understanding is that it's been moved to a contested hearing, not until next year. I can find out the exact date … MEMBER: Okay. No, I don't need to hear - I was really interested to know whether they'd been resolved so that I - - - MS HENNER: Right, yes. MEMBER: Because that was an aspect that I had to take into account. MS HENNER: Yes. MEMBER: If not, then I don't think that I can do any more than that. And I accept that from you, that there's going to be a contested hearing in 2019. MS HENNER: Correct. MEMBER: You don't need to tell me. You know, we have this concept of innocent until proven guilty in Australia. I needed to know about if you had been - if they'd been finalised, that's all I needed to know. And I wasn't sure how much your nephew and brother knew about those things … (Emphasis added.) 47 This passage makes plain that the Tribunal was only interested in the outcome and the process in respect of the charges and not the investigation that had been undertaken. A fair reading of that passage is that the Tribunal was merely seeking to ascertain the status of the charges and nothing more. The Tribunal then plainly put the matter to one side. 48 In these circumstances, I am not satisfied that a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the questions which the Tribunal was required to decide. I also find no error by the Federal Circuit Court in the manner in which it conducted its judicial review of the Tribunal's Decision.

Waiver 49 Finally, I note that [44] of the FCC Judgment stated: There is another reason for rejecting this aspect of the applicant's grounds of review. As the [Minister] submits, even if there was some basis for an apprehension of bias on the part of the fair-minded lay observer, the applicant should be taken to have waived the right to object. The applicant was aware of the circumstances that he now argues gives rise to the disqualification of the [Tribunal] on the basis of an appearance of bias. He did nothing about that before the [Tribunal] rendered its decision. He took no objection to the [Tribunal] completing its task. He was represented at all relevant times. In those circumstances I am satisfied, and I find, that he waived the objection that he now takes. (Citations omitted.) 50 The Minister's written submissions contended that this part of the FCC Judgment was correct. However, at the hearing of this appeal, counsel for the Minister accepted that there could be no relevant waiver in relation to the 2018 Emails or the investigation that they evidence. As a consequence, it is unnecessary to deal with this aspect of the appeal.

disposition 51 The appeal will be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

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