AZZ18 v Minister for Home Affairs

Federal Court of Australia|2019-06-07|Before: Colvin J

The appeal be allowed.
The orders of the Federal Circuit Court be set aside.
The decision of the second respondent made on 20 January 2018 to affirm the decision not to grant the appellant a protection visa be set aside and the matter be remitted to the Authority, differently constituted, for determination according to law.
The first respondent do pay the appellant's costs of the appeal and of the proceedings in the Federal Circuit Court to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The refusal of the appellant's application for a protection visa by a delegate of the Minister was affirmed by the Immigration Assessment Authority. The Federal Circuit Court dismissed the appellant's application to set aside the Authority's decision on the basis of alleged jurisdictional error. There were six grounds raised before the primary judge. The appellant now brings an appeal to this Court in which he says that the primary judge was wrong to refuse each of the six grounds. 2 The appellant appeared in person. He did not file any written submissions. He was given an opportunity to explain why he claimed there was error by the primary judge. His submissions dealt mostly with the merits of his claim. He explained the circumstances of his claim and why he considered that he should be granted a protection visa. He emphasised his claim that it was not safe for him to return to Sri Lanka. However, the merits of the appellant's case were not what the primary judge had to decide. The issue for the primary judge was whether the Authority had made a decision of a kind it was not authorised by statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]-[25]. Under the Migration Act 1958 (Cth), the Authority was the last decision-maker empowered to consider the factual merits of the appellant's claim to a protection visa. The Authority has power to consider the facts and to weigh up the relevant considerations. It is not for the courts to take over that role. When the matter came to the Federal Circuit Court the only question was whether the Authority had exceeded its statutory power. 3 The appellant also referred to recent events in Sri Lanka relating to church bombings. He said that there were huge problems because he was a minority Christian and he will have problems if he is made to go back to Sri Lanka. The appellant's claim that he was a Christian was accepted by the delegate. However, his claims to protection were based upon his ethnicity as a Tamil. Therefore, there was no claim to be considered by the Authority based upon the appellant's religious beliefs. Having regard to the nature of the present proceedings which concern whether the primary judge was correct to find that there was no jurisdictional error by the Authority, these matters are not relevant to the present appeal. 4 The primary judge dealt with each of the grounds raised. There was no suggestion that there was any matter raised before the primary judge that was not addressed. As to grounds 1 to 4, for the reasons given by the primary judge those grounds do not demonstrate jurisdictional error. 5 It is necessary to say something more about grounds 5 and 6.

Ground 5: Alleged unreasonableness by reason of outcome of wife's visa application 6 Before the primary judge the appellant claimed that it was illogical that his wife had been given a protection visa but his application had been unsuccessful: AZZ18 v Minister for Home Affairs [2018] FCCA 3949 at [66]. As to this claim, the primary judge found at [67]-[68] that: There is no information of any sort before this Court that allows the Court to make an assessment in relation to the applicant's wife's visa. However, the Court does note…that the applicant's wife and children are not part of the applicant's application for a protection visa… There are no claims before the [Authority] relevant to the wife's application for a visa. It cannot be said in the circumstances here that there is anything illogical or irrational in the [Authority] either not assessing the wife's particular circumstances or coming to a conclusion that allowed it to find that the applicant himself is not entitled to the protection visa he is seeking. It is apparent that the [Authority] discharged its functions in a way required by the Act and that it correctly applied the criteria contained in the Act for the grant of a protection visa. 7 On the hearing of the appeal the appellant sought to rely upon a letter from his wife addressed to the Court which also enclosed a copy of a letter dated 22 June 2017 advising that she had been granted a protection visa for five years. Counsel for the Minister objected to the tender of the letter on the basis that it was late and it was irrelevant because there had been no claim before the Authority that relied upon the circumstances relating to the separate application by the appellant's wife for a protection visa. The Minister submitted that having regard to the date of the grant of the visa, it was a matter that the appellant could have sought to raise before the Authority as new information, but he did not seek to do so. No objection was raised on the basis of the informal manner in which the evidence is expressed (namely, it was not formally deposed to by way of affidavit). 8 The letter from the appellant's wife says: My brother was abducted by the Sri Lankan Army in a 'White-Van' and killed him. The White-Van came looking for my husband as he helped the LTTE. Because of that, the threat came to my husband's life and we went to India…by boat. We lived in a refugee camp in India for 4 years and from there we came to Australia … Initially, we were in Community Detention in South Australia. From there … my husband went to prison because of criminal conviction. In South Australia the Immigration Department arranged for a lawyer…to come to my house and applied for a 5-year temporary protection visa for me. I asked the lawyer to make a visa application for my husband also. I requested her several times to do this. For that she said to me that as your husband is in prison I cannot apply for him now. When he comes out of prison I can apply for a protection visa for him. I have got my 5-year visa. My husband did not get his 5-year visa and his case has been rejected, from Immigration department and the courts. Honourable Judge. We made our protection case based on the risk to my husband's life. Both of our cases are the same. But his case has been rejected. 9 The decision by the Authority makes no reference to any clams to protection that depended upon the appellant's position as husband and father. There is no reference to any matters concerning the treatment of his wife and children that are advanced to support his claim to protection. However, I note that the letter from the appellant's wife makes the opposite claim, namely that her application was based upon the risk of harm to the appellant. It is not possible to form a view as to the basis upon which the application by the appellant's wife for a visa was upheld because the reasons for the decision to grant the visa are not before the Court. 10 The decision of the delegate was made on 5 December 2017, some months before the decision to grant a protection visa to the wife. It describes the claims to protection. There are some references in the reasons of the delegate to the appellant's wife, but none of those claims concern the circumstances of his wife. The claims to protection all concern the circumstances and status of the appellant. 11 In the above context, the evidence in the letter is to the effect that the wife (and children) of the appellant made a separate claim to a protection visa that was based upon the treatment of the appellant and that claim was upheld. However, no such evidence was before the Authority or the primary judge. There was a single reference by the appellant to his wife and children in a submission to the Authority. It said, relevantly for present purposes: '… my wife and children are living alone, and grant me a visa so that I can live together with my wife and children'. It did not refer to the fact that his wife had been granted a protection visa. 12 Principally because there was no evidence or submission to the Authority concerning the grant of the protection visa to the appellant's wife, nor any suggestion that the Authority was aware of matters that should have caused it to exercise its limited power to invite and receive new information in writing or at an interview about the outcome of the wife's visa application, I accept the submission that the evidence of the appellant's wife is irrelevant. It could not be said that there was unreasonableness in the conduct of the Authority by reaching a conclusion as to the protection claims made by the appellant without regard to the outcome of the wife's application when that was not a matter before the Authority. Even if the Authority had been told of the outcome on the wife's application and assuming that the wife's application succeeded by reason of the appellant's circumstances then it would not follow that a decision by the Authority that was different to that reached by the Authority (constituted by a separate reviewer) at an earlier time for the purposes of a separate application was legally unreasonable. Depending upon the circumstances, it is quite possible that different conclusions may be reached by different reviewers both of which are within the bounds of the implied standard of reasonableness that applies to decisions to be made by the Authority. The nature of the review task and the factual determinations to be made means that there is room for a divergence in reasonable views. 13 It follows that it has not been demonstrated that there was error by the primary judge in the approach to ground 5.

Ground 6: Alleged apprehended or actual bias 14 Ground 6 as raised before the primary judge was expressed as: 'The [Authority's] decision was affected by apprehended or actual bias'. When asked by the primary judge to explain the basis for the ground the appellant provided no amplification of the basis for the claim. Quite properly, the submission for the Minister to the primary judge addressed the possibility that the claim was a complaint that the Authority had information before it about the appellant's criminal convictions which was irrelevant and prejudicial. The submission accepted that there was information about the convictions that was before the Authority in the form of a criminal record check and that it was strictly irrelevant. The criminal record check appears to have formed part of the departmental file in the office of the Minister for Home Affairs. 15 Before the primary judge, the Minister then submitted that the same information as contained in the criminal record check was also before the Authority in the appellant's visa application, his account at his interview and in the delegate's decision. Also, it was said that the appellant volunteered further details about his offending in his submission to the Authority. On that basis, it was said that the information could not be sufficiently prejudicial to demonstrate bias. In effect, even though the matters in the criminal record check were irrelevant and prejudicial, they should not form the basis for a conclusion that there was a reasonable apprehension of bias because the same information was before the Authority in other documents and was the subject of a submission by the appellant to the Authority. The Minister relied upon the decision in CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159 at [135]-[136] (Moshinsky J) and [169]-[171] (Thawley J). I note that Mortimer J was in dissent as to the result in that case. In due course, it will be necessary to refer further to the matters considered in CNY17. 16 The position in relation to the other documents that were before the Authority in the present case that referred to the appellant's offending was as follows. As to the application, there was a specific question that required the appellant to give details of any crime or offence for which he had been found guilty. The appellant provided details of his convictions in Australia for unlawful sexual assault with a minor and supplying alcohol to a minor. As to his account at the interview, he provided details of previous addresses which included a prison address. As to the delegate's decision, it included the following: I have not undertaken a full assessment of the applicant's onshore criminal history against the provisions set out in Section 36(1C)(b) and Section(2C)(b) in the Migration Act, given I have found that the applicant is not a refugee as defined under Section 5H(1), nor is he owed protection obligations as defined under s36(2)(aa). The applicant was arrested … for one count of unlawful sexual intercourse with a person under seventeen years of age and with supplying alcohol to a minor. The applicant was remanded in custody. … the applicant was convicted of unlawful sexual intercourse with a person under seventeen years of age. He was sentenced to imprisonment of one year and nine months, with a fixed non-parole period of twelve months. The applicant was released from Yatala Labour Prison, South Australia. … The applicant was transferred to immigration detention at Yongah Hill IDC … ; he has remained at this location to date. (footnote omitted) 17 Section 36(1C) makes it a criterion for a protection visa 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 of a particularly serious crime, is a danger to the Australian community. The term 'particularly serious crime' is defined in s 5M. There was no suggestion in submissions before me by the Minister that the appellant's offending was of that kind. 18 The Minister has a separate statutory power to refuse a visa if a person does not satisfy the Minister that the person passes 'the character test' (which is not met if, amongst other instances, a person has been sentenced to a term of imprisonment of 12 months or more): s 501(1). There is also a power to cancel a visa that must be exercised in certain circumstances which may apply to the appellant having regard to the nature of his offending and his term of imprisonment: s 501(3A). However, there are statutory rights to further consideration of the matter that might be exercised by the appellant if those powers were to be exercised. The exercise of those rights to further consideration might lead to the visa being granted or not cancelled despite the offending. 19 In accordance with the requirements of the Migration Act, the decision of the Minister by the delegate was referred to the Authority on 8 December 2017. The possible exercise of powers under s 501 was not a matter before the Authority on review of the refusal of the appellant's application for a protection visa. The review was concerned only with whether the decision by the delegate to refuse the application for a protection visa on the basis that the requirements for that visa had not been met should be affirmed or a different decision should be made. 20 The appellant was told that the Department had provided the Authority 'with all documents they consider relevant to your case'. He was also told about the limited circumstances in which he could provide new information to the Authority and that he could provide a submission that was no longer than five pages within 21 days. 21 The Migration Act provides for a review on the papers to be conducted by the Authority. The Authority may get new information but does not have a duty to do so. The Authority must not consider new information unless there are exceptional circumstances and certain requirements about the previous unavailability of the information and its credibility are met: s 473DD. So, the Authority may make its decision without accepting or requesting new information or interviewing the visa applicant: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [18]-[31]. It is a limited form of review conducted by reference to review material that the Secretary is required to give to the Authority: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [6]-[7], [13]-[36] (Gageler, Keane and Nettle JJ, Edelman J agreeing). The statutory procedures exhaustively state the requirements of the natural justice hearing rule: s 473DA. The express statutory objective of the Authority is to provide a mechanism of limited review that 'is efficient, quick, free of bias and consistent with [the statutory provisions as to the manner in which the review is to be conducted]': s 473FA. 22 The appellant sought more time to provide 'more details about my situation'. On 3 January 2018 the appellant was told that the time for any submission had expired but if a submission or new information was provided before 9 January 2018 then a determination would be made as to whether it would be accepted. 23 On 8 January 2018, the appellant provided a hand-written document in the Tamil language to the Authority. He was told that it was his responsibility to arrange for it to be translated into English. Later in January 2018, a certified translation of the submission was provided to the Authority. The translation was a typed document of two pages in which the only matter addressed was the appellant's account of all the circumstances relating to the offences that resulted in his conviction. The submission recounted his explanation. It was headed 'Report in regards to the crime I was charged with'. This was the only new information or submission provided to the Authority by the appellant. 24 On 30 January 2018, the Authority made its decision to affirm the delegate's decision not to grant the appellant a protection visa. 25 The reasons of the Authority reviewer began by addressing the information before the Authority. They stated that the reviewer had regard to the material given to the Authority by the Secretary under s 473CB of the Migration Act. In due course, it will be necessary to refer to the statutory provisions concerned with provision of material to the Authority by the Secretary. For now it is sufficient to note the general statement by the reviewer that she had regard to the material given to the Authority by the Secretary. There is no material identified as being irrelevant or prejudicial and to be disregarded for that reason. 26 The reasons then dealt with the submission from the appellant. The reviewer said that an account of the circumstances surrounding his conviction for unlawful sexual intercourse with a person under 17 years had been given by the appellant at his departmental interview. The reviewer described the statement as largely reiterating the account provided in the interview and said that it was not new information. 27 The reviewer then said: 'the account in the statement to the [Authority] provided more detail regarding the events leading up to his conviction, names the two other parties similarly charged, and discussed the reason for his decision to confess to the offence in court'. The reviewer also referred to the appellant's promise in the statement not to offend in the future. The information was characterised as new information. The reviewer then stated: There is no information before me to explain why this information could not have been made available to the Minister. Nor am I satisfied this is credible personal information which had it been known may have affected the consideration of the applicant's protection claims; the new information does not relate to the applicant's claim to fear harm in Sri Lanka. Furthermore I am not satisfied that any exceptional circumstances exist that justify the [Authority] considering the new information. 28 There was no general statement by the reviewer to the effect that the information was irrelevant to the decision to be made by the reviewer. However, the only matter to be addressed by the reviewer was the protection claims made by the appellant (then applicant) and the reference to the information in the submission being information that 'does not relate' to those claims must be understood in that context. Even so, it is by no means a clear statement by the reviewer that the information was to be put to one side. Although the material is said not to relate to the protection claims, it is also said that there was no explanation as to why it had not been placed before the Minister in circumstances where the offending was referred to by the delegate. Nor was the appellant told by the Authority before the publication of the reviewer's decision and reasons that the submission was irrelevant and would be disregarded. 29 Instead, the process proceeded with the Authority receiving the submission and then giving reasons that it did not consider the submission to be new information. Part of its reasoning was that the information had already been placed before the delegate when the appellant was interviewed. The reviewer did not suggest that the information that was before the delegate and was part of the information provided to the Authority by the Secretary was to be disregarded. Rather, the reviewer's reasoning was that it was not new information. 30 So, the Authority proceeded with the making of its decision with information about the offending being before the reviewer. 31 The Authority also had the additional more detailed information about the circumstances in which the appellant came to be convicted for the offence that was provided by the appellant in his submissions to the Authority. The appellant, by placing the information before the Authority, was making plain his belief that the Authority would be influenced by matters relating to the offence when it made its decision. The Authority took no steps to disabuse the appellant of that belief either before the making of its decision or in its reasons. Given the nature of the statutory process, the appellant had no opportunity to engage with the Authority reviewer about the issue before the decision was made. In other statutory contexts where there is a hearing then there would be an opportunity for such an exchange to occur. 32 Having regard to the nature of the process, the receipt of the further submission without rejecting it as irrelevant was akin to a case where there was a tribunal hearing where detailed submissions are made on a particular topic that is irrelevant and prejudicial without there being any indication from the tribunal that it will disregard the material for that reason. The receipt of the information is part of the context in which an evaluation is to be made as to whether there was a reasonable apprehension of bias. 33 The fact that the submissions were advanced by the party who would be prejudiced if they were brought to account is not determinative. Usually, there may be less concern where the party who might be prejudiced is the source of the information than where it is raised by the decision-maker. In the latter instance, the fact that it is the decision-maker who refers to the information indicates that the decision-maker has formed the view that it is material. However, the same conclusion may be drawn, in all the circumstances, where an irrelevant and prejudicial matter is raised by a party who is not legally represented. The application of the test does not depend upon the source of the information. 34 As stated in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (a case dealing with alleged judicial bias), the test is relatively well settled and is 'whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits'. It is a test that applies also to administrative decision-making with due allowance for the difference in process. It is a principle that recognises that statutory powers are generally conferred on the basis that a fair and unbiased process will be followed in the exercise of the power: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]. 35 The primary judge recounted at [70] the written submission of the Minister which included a submission: To the extent that the applicant complains that the [Authority] had information before it about his criminal conviction which was prejudicial, the Minister submits that this could not give rise to any apprehended bias. It may be accepted that the applicant's criminal record check … was strictly irrelevant. 36 The primary judge then dealt with the bias ground in the following way at [71]-[72] The applicant was asked to provide further details in relation to why he believed the decision-maker was biased. Unfortunately, no explanation was provided that assisted the applicant in this regard. It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven. There is nothing in the [Authority's] decision here which suggests that there was any bias on its part, actually or apparently, against the applicant, or that the relevant [Authority] decision-maker approached the task of reviewing the material before it with a preconceived view as to the outcome or any way other than objectively. 37 However, what arose from the circumstances that were before the primary judge and the submissions quite properly advanced for the Minister was not confined to an issue of actual or apparent bias by reason of anything that the Authority did, but rather included an issue as to whether there was a reasonable apprehension of bias by reason that irrelevant and prejudicial material was placed before the Authority. It is well established that knowledge on the part of a decision-maker of some prejudicial but inadmissible fact or circumstance may give rise to an apprehension of bias: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74. 38 As I have noted, in applying the principles concerning apprehended bias in the context of administrative decision-makers there must be due allowance for the fact that '[t]he analogy with the curial process is less apposite the further divergence there is from the judicial paradigm': Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]. 'What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision': Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [70] (McHugh J) (as approved in Isbester at [22]). The material differences between the administrative decision-making process before the Authority compared to the curial process were summarised in the following terms by Thawley J in CNY17 at [155] when dealing with the decision of the Authority in that case: (1) The decision was made by a specialist tribunal whose decision-makers, being "Reviewers", may or may not have legal qualifications, but who deal with a particular and limited area of migration law in respect of which they might be expected to have developed some expertise. (2) The review was not conducted on the "adversarial" basis upon which curial proceedings are conducted. The particular process contemplated by the statutory scheme does not bear many of the characteristics usually associated with an "inquisitorial" system either. For example, a prohibition (subject to exceptions) on obtaining "new information" is not normally associated with the processes of an inquisitorial tribunal. In any event, attaching a label is not helpful as it only serves to distract attention from the important issue which is precisely how the particular statutory scheme operates and how it differs from the curial process so that the test for apprehended bias can be applied consistently with the principles identified above. (3) The statutory scheme expressly modifies the rules of procedural fairness and denies aspects of the fair hearing rule which would be found in curial proceedings - see: Division 3. (4) There is no entitlement to a hearing and, except in the limited circumstances contemplated by the statutory scheme, the referred applicant is not in fact heard. (5) The review contemplated by the scheme is one of limited merits review, conducted - except in the limited circumstances contemplated by Part 7AA - in substance on the papers (s 473DB(1)), without a duty to get any new information, whether requested to do so or not: s 473DC(2). 39 Although each of the other aspects of the application were carefully considered by the primary judge despite the generality in which they were expressed, the matters raised by ground 6 were not fully addressed by the primary judge.

Minister's submissions as to apprehended bias 40 On appeal, the Minister advances the same submission concerning bias as was advanced to the primary judge. In effect, what is submitted is that the matters relating to the appellant's criminal offending though not relevant to the matters to be determined by the Authority, were before the Authority in other ways and, in addition, the appellant had volunteered further details concerning the offending by way of submission to the Authority.

The statutory scheme 41 The statutory scheme in relation to a review by the Authority commences with the Minister referring the decision to the Authority: s 473CA. Then, the Secretary must give to the Authority all of the materials listed in s 473CB(1). They include, amongst other things: (a) the reasons for decision of the delegate; (b) material provided by the applicant to the delegate before the delegate's decision was made (which would include the application); and (c) 'any other material that is in the Secretary's possession or control that is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review': s 473CB(1)(c). Secretary means the Secretary of the Department. Therefore, the parts of the records of the Department that are considered by the Secretary to be relevant to the review are given to the Authority. 42 As I have noted, the application for the protection visa completed by the appellant required him to provide information about prior convictions. An application for a visa is only valid if it satisfies the requirements prescribed under s 46 of the Migration Act: s 46(1)(b). Requirements have been prescribed in the Migration Regulations 1994 (Cth). In particular, where there is an approved form for a visa application then it must be completed in accordance with any directions on the form: reg 2.07. There is an approved form for a safe haven enterprise visa being the type of protection visa applied for by the appellant: Schedule 1 Item 1404. The approved form requires the information about convictions to be provided. 43 As I have noted, s 473FA provides that the Authority in carrying out its functions under the Migration Act is to pursue the objective of providing a mechanism of limited review that is, amongst other things, 'free of bias'. The reference to 'bias' is not to be confined to actual bias. It includes apprehended bias: CNY17 at [23] (Mortimer J), [123] (Moshinsky J). 44 Therefore, the fact of the convictions was before the Authority by operation of the statutory scheme. It was required to be included in the application and the application was required to be before the Authority. This was not a case where the contentious information came before the Authority outside the statutory process or by a decision of the Secretary as to which documents to transmit to the Authority. Precisely the same information as was contained in the criminal record check was in the application and had to be before the Authority. In those circumstances, it is difficult to see how the statutory obligation expressed in s 473FA that the Authority in carrying out its functions to pursue the objective of providing a limited review that is, amongst other things, 'free of bias' is referring to a claim of apprehended bias that derives merely from matters being before the Authority that are of a kind that the legislative scheme expressly requires be given to the Authority by the Secretary. 45 Similarly, the Authority had no control over the content of the submission to the Authority by the appellant. Once received, the Authority was required to consider its terms for the purpose of deciding whether it contained new information or was otherwise to bear on its decision. However, the mere receipt of that information would not, of itself, give rise to a reasonable apprehension of bias.

Nature of the possible apprehension of bias 46 If there be a concern, then it is an apprehension that arises from the conduct of the Authority in failing to expressly recognise that particular information that must be before Authority is, in the particular circumstances, irrelevant. If it is not identified as such before the Authority proceeds to make its decision then (particularly if the information is seriously prejudicial) there might be a reasonable apprehension on the part of a fair-minded and fully informed lay observer that it is has not been put to one side by the Authority when making its decision. 47 Where, as here, the prejudicial information takes the form of information that might be the basis for the exercise of a separate power under s 501 then the apprehension may be particularly acute. In such a case there is a risk that the offending might be brought to bear (unconsciously or otherwise) in affirming a decision to refuse a protection visa without the person concerned being able to pursue the statutory rights afforded by the Migration Act in the event of an exercise of power under s 501. In accordance with the established principles, a fair minded observer would be attributed with an understanding of this aspect of the legislation. It would be quite prejudicial if the offending of a particular applicant for a protection visa came to be deployed (even unconsciously) as a reason why the refusal of a protection visa should be affirmed when there is a detailed regime about how such offending may bring about such refusal (or a cancellation of a visa once obtained). 48 Both before the primary judge and on appeal the Minister made written submissions to the effect that the criminal record check 'was strictly irrelevant to the issues the [Authority] had to determine'. As a matter of logic, that concession must extend to all of the information about the offences stated in the criminal record check. If the Authority brought that information to bear in making its decision then it would have acted upon irrelevant and quite prejudicial material. The Minister's submission was that because the same information was required to be before the Authority in the form of the application and the delegate's decision materials as well as because the appellant himself had volunteered much greater detail concerning the same offending then the information was not 'sufficiently prejudicial'. 49 Two issues arise from these submissions. First, to what extent does the fact that the irrelevant and prejudicial information was required to be before the Authority bear upon what a fair-minded and appropriately informed lay observer might apprehend about the effect that the information might have upon the Authority bringing a fair, impartial and independent mind to the task. Second, to what extent does the fact that the same information was volunteered by the appellant himself bear upon that matter.

Decided cases concerning apprehended bias and the Authority 50 In Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534, the Court dismissed an appeal by the Minister in a case where a claim of jurisdictional error by reason of apprehended bias had been accepted in the Federal Circuit Court. The material sent by the Secretary to the Authority had included a Departmental email in which it was stated that the applicant for the visa had been charged with indecent assault while being aware that the person was not consenting. The main judgment was delivered by Griffiths J. His Honour found that the highly prejudicial nature of the communications meant that the fair-minded lay observer would not dismiss the possibility that the Authority may have been affected by the Departmental communications albeit subconsciously: at [75]. His Honour found that the mere fact that there was no reference to the material in the Authority's reasons did not mean that the fair-minded observer would conclude that it played no part in the decision: at [74], [78]. It did not matter that the information may have been properly before the Authority: at [78] (but the Departmental communications should not have been provided to the Authority: at [86]). As to these matters, Charlesworth J agreed: at [99]-[101]. 51 Dowsett J agreed with the result, but for slightly different reasons. At [2]-[4], his Honour said: First, the case has been conducted upon the basis that apprehension of bias is an available ground for review of a decision of the Immigration Assessment Authority (the "IAA"). In my view, it is at least arguable that the reference to bias in s 473FA of the Migration Act 1958 (Cth) refers to actual bias, and not to apprehension of bias. Secondly, I do not accept that the information in question (the "information") was, by itself, necessarily so prejudicial as to bring the matter within the fourth category of apprehended bias identified by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74. A lay jury is quite a different creature from a professional decision-maker in a specialized area. In the present case, the decision concerned the refusal to grant a temporary protection visa, upon the basis that the first respondent would not be at risk of serious harm in Iran. I do not accept that a fully informed, fair-minded, lay observer might apprehend bias, merely because he or she was aware that the first respondent had been charged with a serious offence. After all, even a convicted criminal is entitled to the protection of the law. However, in the present case, there is rather more than knowledge of irrelevant and prejudicial information. Such information had been communicated to the IAA as material considered, by the Secretary, to be relevant to the review. In those circumstances the fair-minded observer might well apprehend bias where the decision-maker has not expressly identified such information as irrelevant, and has not said that he or she has excluded it from consideration in the decision-making process. 52 In CNY17, Mortimer J concluded (as summarised at [3]) that there was jurisdictional error because the Authority had proceeded to make its decision in circumstances where there was a reasonable apprehension of bias. Her Honour found that the appropriate point in time to apply the relevant principles was to the position that pertained before the Authority made its decision because it is an obligation that must be met before the exercise of power. The material in that case was found by her Honour to be more than contextual 'and was considerably more than the appellant had disclosed himself in his protection visa application'. It was prejudicial and adverse to his interests on the review before the Authority. Material to that conclusion was the nature of the review by the Authority which elevated the importance of the documents that were before the Authority because of the absence of an oral hearing and the fact that ordinarily an applicant would not 'have any further opportunity to address, explain, correct or supplement the review material': at [26]. 53 Mortimer J accepted at [30]-[31] the following characterisation of the materials that were given to the Authority by the Secretary: (a) extensive pages of internal Department emails and other material referring to the Appellant having been charged for damaging Commonwealth property; (b) repeated references to the Appellant having spent time in a prison; (c) repeated assertions that the Appellant was involved in a 'riot'; (d) assertions that the Appellant had 'a history of aggressive and/or challenging behaviour when engaging with the department', and had been involved in 'many incidents while in detention'; and (e) an imputation that he was a national security risk. 54 Her Honour's ultimate conclusion did not depend upon the material being improperly before the Authority in the sense that there had been an improper exercise of power by the Secretary in sending irrelevant material to the Authority. However, the fact that the conveying of material by the Secretary to the Authority carried with it the premise that it was relevant to the review was identified as a matter that contributed to the existence of the apprehension of bias: at [64]. The conclusion was expressed in the following terms) at [66] (following the three steps outlined by Gageler J in Isbester which are to be followed in concluding whether there is a reasonable apprehension of bias): The factor which might cause the appellant's review of the delegate's decision to be decided otherwise than as the result of a neutral evaluation of the merits of his review application is the receipt of the impugned material by the [Authority], on the basis (pursuant to s 473CB(1)(c)) that the Secretary considered the material relevant to its review. The impugned material was legally irrelevant, prejudicial and adverse to the appellant in the ways I have described above. A hypothetical lay observer might apprehend that the reading and consideration of that material by the [Authority] (as required by s 473DB(1)) might cause the [Authority] to deviate from a neutral evaluation of the appellant's evidence and of his claims, because of the way that material fixed the appellant with certain characteristics, where those characteristics were capable of affecting both the ultimate question (if he should be granted a visa to be released into the Australian community) and questions along the way (whether he should be believed in what he said in support of his protection visa application). Third, there is a reasonable basis for such an apprehension to arise because of the official source and quality of the material, and the task of the [Authority] involving a decision that has the effect of releasing the appellant into the Australian community. 55 Moshinsky J found that the decision was not affected by apprehended bias and that the facts of AMA16 were distinguishable: at [131]. His Honour did not consider there to be a basis to suggest that the Secretary did not form the (requisite) view that the documents were relevant to the review: at [133]. It was of significance that under s 473DB the Authority was obliged to consider the documents provided by the Secretary: at [133]. In that context, his Honour noted that much of the contentious information was before the Authority in any event having been disclosed in the visa application and the delegate's reasons: at [134]. His Honour did not consider the additional information to provide a sufficient basis to conclude that a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made: at [135]. 56 Thawley J agreed with Moshinky J that much of the substance of the prejudice in the material provided by the Secretary was contained in material that under the statutory scheme was required to be before the Authority (particularly the application and the delegate's reasons): at [160]. His Honour then found that the required analysis 'must be undertaken recognising that there was necessarily prejudicial material before the decision-maker in any event because of the way the statutory scheme operated': at [161]. His Honour then concluded at [162]: The mere existence of irrelevant material provided under s 473CB(1)(c) cannot give rise to an apprehension of bias. There must be some quality to the irrelevant material which might give rise to a reasonable apprehension of the possibility that the decision-maker might not bring an impartial mind to the decision to be made. Administrative decision-makers regularly have irrelevant material placed before them. The ability to ignore irrelevant material is not a skill enjoyed only by lawyers. In my view, a fair-minded observer would not conclude that a "Reviewer", being a part of a specialist division of the Tribunal familiar with the particular and limited legal questions which arise for its consideration, is (as an absolute proposition) unable to disregard irrelevant material. 57 Later, his Honour expressed the view that 'the reasonable lay observer would be taken to know that it was not the Secretary personally who provided the review material': at [174]. Further, the role of the Authority, in the statutory scheme, 'is not to assume that what it receives is necessarily relevant (although it would legitimately assume that the person providing it considered it to be relevant) or of some particular or special significance apart from its relevance to the review': at [176]. Viewed through that statutory context, his Honour reached a conclusion on the particular facts that there was no reasonable apprehension of bias: at [177]. 58 Recently, in CKV16 v Minister for Immigration and Border Protection [2019] FCA 342, Besanko J considered a claim of apprehended bias where there were emails before the Authority referring to the appellant's conviction for indecent assault and an investigation by the police of the appellant's involvement in the offence of attempting to pervert the course of justice: at [7]. The Authority referred in its reasons to the appellant's conviction for indecent assault (a matter that had been referred to in the delegate's reasons), but not the fact that the police were proposing to interview the appellant in relation to a possible offence of attempting to pervert the course of justice: at [11]-[12]. 59 In CKV16, counsel for the Minister conceded that the Court was bound to reject an argument that the appellant's apprehended bias argument could not succeed unless the Secretary's decision under s 473CB(1) that the materials were relevant to the review was invalid: at [18]. 60 The appellant did not say that the information about the conviction for sexual assault was irrelevant: at [28]. Rather, the claim was that the information concerning the investigation of the offence of perverting the course of justice was prejudicial. His Honour concluded at [28]: Not without some hesitation, I have reached the conclusion that, in the circumstances, the fair-minded lay observer, acting reasonably, might apprehend that the [Authority] might have been affected by the material, even subconsciously. 61 There is some divergence in these decisions as to the significance that might be given to the nature of the statutory process that must be followed by the Authority when forming a view as to whether there may be a reasonable apprehension of bias because irrelevant and prejudicial information is before the Authority. In particular, the significance of the provisions that require certain information to be before the Authority and for the Authority to consider that material has been relied upon to conclude, in effect, that the same or similar information coming from another source might not give rise to the requisite apprehension on the part of the observer. The review material that has to be before the Authority is listed in s 473CB. Some of it is specifically identified. However there is a category of any other material held by the Secretary that is considered by the Secretary to be relevant to the review. Therefore, material about which the Secretary forms such a view must also be before the Authority. 62 In addition, there is no part of the statutory procedure that contemplates any communication with the visa applicant by the Authority about the relevance of particular material, save only for the provisions about new information. New information is only to be given to the visa applicant if it has been, or is to be, considered by the Authority and would be a reason for affirming the delegate's decision: s 473DE. 63 However, there is no suggestion in AMA16, CNY17 or CKV16 that there can be no reasonable apprehension of bias by reason of the nature of the statutory procedure. The test requires a consideration of the particular circumstances, albeit with due regard to the nature of the statutory process that is required to be followed by the Authority.

Application of principles to present case 64 In my view, in the particular circumstances of this case, the following significant matters are to be brought to account in making the relevant evaluation. 65 First, the Minister conceded that the information was strictly irrelevant when it came to the decision to be made by the Authority. 66 Second, the information is prejudicial. It is information that may cause a reviewer to form an adverse view about the appellant and to bring that matter to account subconsciously. More significantly, in the context of the other provisions of the Migration Act (particularly s 501(1) which empowers the Minister to refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test) there is the potential for a subconscious view to be formed about the likely further course of future events as to the exercise of the power under s 501 despite that power not having been exercised by the Minister. 67 Third, the material is contained in the delegate's decision and is presented to the Authority as part of the material that was considered by the person whose decision is under review. It is not simply material that formed part of the departmental file about which there may be a divergence of views as to its relevance. However, the delegate's decision does not rest on the material. 68 Fourth, there is no indication that, at any time before the decision was made, the Authority consciously adverted to the irrelevance of the information for the statutory task it was to perform. Although that is a matter to be inferred from the form in which the reasons are expressed, it is nevertheless a matter (based on that evidence) that is to be attributed to the appropriately informed lay observer at the time when the Authority is to undertake the statutory task. 69 Fifth, the appellant acting on his own behalf made a submission in considerable detail relating to the circumstances that led to his conviction for two offences. Strikingly, there is no statement by the Authority in its reasons that it has disregarded the information. In concluding that the information was not new information the Authority did not state squarely that it was irrelevant to the task being undertaken by the Authority. It said that the material was not new information because it was before the delegate and it did not relate to the protection claims. However, it also made a general statement that it has had regard to the material given by the Secretary (which includes the irrelevant and prejudicial information). Even if there were a statement to the effect that the information had been disregarded then that would not be conclusive: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88. However, where, as here, there is no disavowal, then that is part of the context to be brought to account. These aspects of the reasons support the inference that prior to the making of its decision, the Authority did not put to one side the matter of the offending. The absence of a disavowal when the reasons came to be published when considered in the context of what had occurred before the decision was made is relevant to reaching a conclusion about the nature of the decision-making process that was followed in coming to that decision and whether it was infected by the irrelevant and prejudicial material, albeit subconsciously. 70 Sixth, although it is an important part of the context that the information about the appellant's offending was required to be before the Authority because of the statutory scheme, the scheme is not a wholesale permission for the Authority to proceed to make a decision in circumstances and in a manner that gives rise to an apprehension of bias. The bias rule still applies. An observer may be taken to know the nature of the scheme. It may be accepted that usually it is not reasonable to apprehend that the mere transmission of irrelevant information as part of a statutory process that required information of that kind to be before the Authority would cause a deviation from a neutral evaluation of the merits. All other things being equal, the Authority reviewer may be expected to be able to form the necessary judgment as to what was relevant and put extraneous material to one side. However, the facts in the present case went further. The relevant observer is to be taken to know of the significance that was placed upon the particular material because of the submission from the appellant as well as each of the other matters I have identified. All contextual matters are to be brought to account. 71 Seventh, the appellant was not represented when he advanced his submission. The submission itself indicated a strong concern on his behalf that the Authority would be affected by his offending when making its decision on his protection visa claims. Further, the detailed submission by the appellant concerning his offending was made in a context where that offending had been referred to in the delegate's decision. A party who was legally advised to present such material might be treated as having made a considered decision to place it before the decision maker despite its lack of relevance. However, where it was the only matter advanced by the appellant acting on his own behalf it indicated his expectation that the Authority was going to be influenced by matters relating to his offending in making its decision. A submission of the kind made by the appellant would serve no purpose unless there was a concern that the Authority would bring to account the offending when making its decision. The conduct of the Authority in relation to the manner in which it approached the information is to be considered in a context where the concern of the appellant about the irrelevant and prejudicial information affecting the decision of the Authority had been made manifest by his submission. 72 Eighth, this is not a case where the Authority is the source of the information. It has not, for example, sought out the information as new information. As the source is the appellant its presentation, of itself, is hardly any indication that the Authority might bring it to account despite its irrelevant and prejudicial character. Rather, it is the silence by the Authority in the face of that matter being raised by the appellant that is significant. 73 In all the circumstances, I conclude that, in the context of what occurred (all of which is to be attributed to an appropriately informed fair minded observer, including the facts that may be inferred from the way the Authority ultimately expressed its reasons), the fair-minded lay observer informed of those matters might reasonably apprehend that the Authority might not bring a fair, impartial and independent mind to the determination of the matter on the merits. 74 After this matter had been fully argued I became aware that there had been a grant of special leave in CYN17 shortly prior to the hearing. As I have taken the view that the outcome in this matter depends upon an evaluation of the particular circumstances of the case and concerns an application for a protection visa where the appellant is held in immigration detention, I see no reason to defer delivery of my decision.

Additional factual matters raised on appeal 75 In reaching these conclusions I have not brought to account the informal evidence given by the appellant on appeal as to why he made the detailed submission to the Authority. In the course of the appeal hearing the appellant said that he provided the submission because his criminal offence was the reason why his visa had been refused. He said he could not read the letter from the Department and he got help from someone who said that he did not get a visa because of his criminal offence and because the situation in Sri Lanka is better now. He made inquiries about making a submission and then took the steps to make a submission about his offending. The Minister objected to the relevance of this material (though not the informal manner in which it was given). It does not attribute any responsibility to the Minister or the Authority. It seeks only to explain why the material was presented. 76 In my view the matters stated by the appellant on appeal do not take the matter any further than the position before the primary judge. At that time, the appellant's submission to the Authority was before the Court. There was a claim of bias which was addressed by the Minister on the basis that it raised a claim of apprehended bias by reason of the information concerning the appellant's offending and conviction being before the Authority. Part of the answer to the claim of bias that was advanced by the Minister to the primary judge was that, in any event, the relevant material had been presented to the Authority by the appellant voluntarily. The same submission is made on appeal. However, that submission fails to recognise the context in which the appellant made his written submission about his offending to the Authority. The decision of the delegate recounted the circumstances that led to the imprisonment of the appellant. In those circumstances, it is not surprising that the appellant may have been concerned that the offending was part of the reason why his visa application was refused. That is apparent from his submission and there is no need to consider, in addition, the matters advanced informally by the appellant.

Conclusion 77 For those reasons, I would uphold ground 6 of the appeal, set aside the decision of the primary judge and remit the matter to the Authority, differently constituted, for adjudication according to law. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Under the Migration Act 1958(Cth)

Migration Act 1958(Cth)ss 5M, 36(1c), 46, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473FA, 501

At a glance

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Before

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Judgment (11 paragraphs)

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Legislation Cited (3)

Cases Cited (18)

Cited By (1)