Ground three - analysis
36 I accept the submission of counsel for the appellant, who had appeared below, that the proceeding before the primary judge was argued upon an accepted premise that the impugned information referred to in the amended originating application below was to be characterised as irrelevant to the review before the Tribunal and as prejudicial to the appellant. The submission was not disputed by counsel for the Minister, and further the primary judge's reasons are consistent with the matter having been argued on that premise, because they appear to assume that the information relating to the appellant's convictions for family violence offences was irrelevant and prejudicial. I should say that I understand the term "irrelevant" in this context in the same sense explained by Kiefel CJ and Gageler J in CNY17 at [6], namely that the information was not capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Tribunal might be required to make a finding in the conduct of its review: cf, Evidence Act 1995 (Cth), s 55. I observe that the term "irrelevant" might be used in other senses, including as being immaterial to the decision arrived at upon review.
37 There is, however, one feature of the application below, and of the primary judge's reasons to note in this context, which relates to the identification of the impugned information. The amended originating application before the court below relied only on the Tribunal's possession of information that the appellant had been convicted of criminal charges relating to family violence as being prejudicial and irrelevant to the review. No reliance was placed on the information relating to the fingerprinting of the appellant in 2009, and the claim that it matched a person with another name who had entered Australia 15 years earlier and who had been charged with the handling of stolen goods and who was returned to India. At [142] of the primary judge's reasons for judgment, his Honour noted that the submissions put on behalf of the appellant below traversed matters going beyond the particulars of apprehended bias by relying on the information about the fingerprinting. His Honour held that it was appropriate to determine the ground of review raising the claim of apprehended bias by reference to the way in which it was framed, and his Honour's reasons thereafter focus on the information relating to the family violence convictions. Similarly, the notice of appeal before this court identifies the information which is the subject of the ground relating to apprehended bias as "information indicating that the [appellant] had been convicted of criminal charges relating to family violence". There is no reference in the notice of appeal to the fingerprinting information. However, in written and oral submissions before this court counsel for the appellant addressed information relating to both the family violence convictions and the fingerprinting. I will address the appellant's case as argued.
38 I will commence my consideration by identifying the relevant principles. One of the most important of those is that the question whether there is a reasonable apprehension of bias is largely a factual one: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [20] (Kiefel, Bell, Keane and Nettle JJ). Particular cases may serve to illustrate the principles, but cases involving questions of apprehended bias are fact-dependent. Furthermore, a conclusion as to whether there is a reasonable apprehension of bias is often a matter of impression, and facts often strike reasonable minds in different ways, as shown by the different views taken of the facts in many of the leading authorities such as the judgments in the New South Wales Court of Appeal and in the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283, and more recently in CNY17.
39 In relation to judicial decisions, the foundational principle is that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), namely that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The application of this principle involves two steps: (1) identification of the factor which it is said might lead the judge to decide the case otherwise than on its legal and factual merits; and, (2) an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits: Ebner at [8]; CNY17 at [21]; cf Isbester at [59] (Gageler J) where three steps are articulated, the additional third step being consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way, citing by way of comparison Ebner at [8]. At the same time, a finding of apprehended bias is not to be reached lightly: CNY17 at [56] (Nettle and Gordon JJ), citing Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342 at 371 (Dawson J).
40 One category of case where circumstances have been held to give rise to a reasonable apprehension of bias is where the decision-maker is in possession of irrelevant and prejudicial information: Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74 (Deane J). Whether a reasonable apprehension of bias arises in this type of situation must depend upon all the circumstances, the conclusion being largely a factual one: see CNY17 at [101] (Nettle and Gordon JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455 (CQZ15) at [100] (Kenny, Bromberg and Anderson JJ).
41 These principles are appropriately adapted in the case of administrative decision-makers so as to recognise differences between the type of decision-making having regard to the relevant statutory provisions under which a decision is made, the attributes of the person upon whom the decision-making function is conferred, and the procedures to which the decision-maker is subject: see, Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [98]-[100] (Gleeson CJ and Gummow J) and [179]-[180] (Hayne J). In the case of the Administrative Appeals Tribunal performing a review function under the Migration Act, it is relevant that the Tribunal's members are appointed by the Governor-General, it conducts its review in an inquisitorial way, has available to it statutory powers to get information, and has statutory obligations to accord procedural fairness such as that under s 424A of the Act, to which I will return. In this case, as is the usual position in reviews by the Tribunal under the Migration Act, there was no contradictor, and because of the nature of the Tribunal's inquisitorial function and its statutory obligations, there was no possibility that the Tribunal could conduct its review with the inscrutable face of the Sphinx. It therefore fell to the Tribunal to test and consider the appellant's claims with some of the consequences referred to by the court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [30] (Gleeson CJ, Gaudron and Gummow JJ) -
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
42 Otherwise, it remains that the fair-minded lay observer will expect that the Tribunal will adhere scrupulously to a standard of independence and will be free of prejudice: CNY17 at [53] (Nettle and Gordon JJ).
43 To illustrate the application of the principles to which I have referred, I will address briefly the circumstances that arose in CNY17, and to reasons of the majority justices, Nettle and Gordon JJ, and Edelman J. CNY17 concerned a review by the Immigration Assessment Authority under Part 7AA of the Migration Act. The Authority did not have jurisdiction to review a decision refusing a visa on character grounds that would engage the discretion in s 501, or that would engage the disqualifying criteria in s 5H(2), 36(1C), or 36(2C)(a) or (b) of the Act. Under s 473CB(1) of the Act, the Secretary of the Department was required to give to the Authority material, including "any other material that is in the Secretary's possession or control and is considered by the Secretary … to be relevant to the review". Section 473DB(1) of the Act required the Authority to review the referred decision by considering the review material provided to it under s 473CB. Pursuant to s 473DA(2), there was no obligation on the Authority to provide the referred applicant with any material that was before the Minister. The circumstances in which the Authority could get or consider new information were limited by ss 473DC and 473DD. Under s 473DE, there was a qualified obligation on the Authority to give the referred applicant particulars of new information if it would be the reason or part of the reason for affirming the referred decision.
44 The referred applicant's visa application disclosed a conviction relating to the breaking of a window while in detention, and disclosed charges that were pending and which related to an incident during protests on Christmas Island while the referred applicant was in detention. In addition, in giving material to the Authority the Secretary included 48 pages of departmental documents that made allegations that bore unfavourably on the conduct of the referred applicant in his engagement with the Department, and while in detention. That material was described as involving "prejudicial opinion, innuendo and tacit suggestion", and comprised a very large part of the material that was provided to the Authority: Edelman J at [110]-[111]. The referred applicant never had these documents, was unaware of them until he sought judicial review of the Authority's decision, and their contents were irrelevant to the task of the Authority and prejudicial to the applicant.
45 Nettle and Gordon JJ attributed to the fair-minded lay observer knowledge of the key aspects of the statutory scheme, to which I have referred above. At [95] and [98], their Honours identified that the Authority had to consider the information that was given to it by the Secretary, and which the Secretary had endorsed as being relevant to its task, without the appellant knowing about the information or having any ability to comment on it. The Authority did not refer to the material in its reasons, still less put the material to one side. Their Honours at [100] referred to the information as having been hidden from the applicant. In these circumstances there was a risk that the information would lead the Authority to have a bias against the referred applicant, possibly by thinking that the applicant was not a fit person to hold a visa or that the applicant would be a danger to the community. The risk was described by their Honours at [97] as being a risk of subconscious bias. In all these circumstances, their Honours held that the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits. Importantly, their Honours emphasised that their conclusion depended upon the facts of the case, adding at [101]-[102] -
101 This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
102 If circumstances like this arise, a decision-maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias. …
46 The other member of the majority, Edelman J, emphasised at [110]-[111] that the Authority had stated in a letter to the referred applicant that it would make a decision on the basis of the information provided by the Secretary, acknowledged in its reasons that it had considered all of the material provided to it, and did not, as a professional decision-maker, suggest that any of the irrelevant and prejudicial material had been disregarded. In these circumstances, Edelman J concluded that a fair-minded lay observer would apprehend, at the very least, that the Authority might have taken the material into account, either consciously or subconsciously.
47 CNY17 was applied by the Full Court (Bromberg, Davies and O'Bryan JJ) in FSG17, where the Secretary had included within the material given to the Authority documents evidencing that the referred applicant had been charged with an offence involving an allegation that the applicant had been in a sexual relationship with a girl under 16, who was a ward of the State, for a period of three years. One distinguishing feature of FSG17 was that the Authority identified the information, cogently explained why the information was irrelevant, and stated that it had disregarded the information. However, the Full Court held that the Authority's conscious endeavour to disregard the information did not cure the reasonable apprehension of bias as the information, which related to sexual offending involving a vulnerable child, was of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the Authority to put the information out of its mind. The fact-sensitive nature of the decision in FSG17 is reinforced by the observations of the court at [44] -
In the context of a review under Pt 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.
48 The principles discussed in CNY17 were applied to a decision of the Tribunal by the Full Court in CQZ15, to which I referred at [40] above. The litigation in CQZ15 had a protracted history, as explained by the Full Court in its reasons. A delegate of the Minister gave notification to the Tribunal under s 438 of the Migration Act of information in a "Job Details Report" which was a 15 page document, stating that the information had been disclosed to the Minister in confidence, and that it should not be disclosed to the applicant for review. The Full Court described the information as including references to the applicant being subject to an intervention order for "threatening, stalking, harassing a female minor", as containing information that indicated that the visa applicant was a person of interest as a witness in a people smuggling investigation conducted by the Australian Federal Police, and as stating that there were "integrity concerns" about the applicant. The Tribunal did not disclose the information in the Job Details Report to the visa applicant, and made no reference to it in its statement of reasons for its decision: CQZ15 at [26]. However, the Full Court held that there was no objective basis for inferring that the Tribunal had regard, consciously or unconsciously, to the information in the Job Details Report in making its decision: CQZ15 at [82]. In these circumstances though, the Full Court held that where the visa applicant's credit was in issue, a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal's approach to its decision, notwithstanding that it was to be inferred that the Tribunal did not have regard to the information. The Full Court held that the fair-minded lay observer might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it: CQZ15 at [118].
49 One important point that is emphasised by the reasons of the Full Court in CQZ15 is that an allegation of apprehended bias in a case such as the present is not concerned with whether in fact the Tribunal consciously or subconsciously took into account prejudicial and irrelevant information. Rather, the question is about imputed lay perception. As the court stated at [118] -
… a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal's approach to the decision, notwithstanding that it consciously did not have regard to the information. The touchstone for apprehended bias is not the judicial observer but the experience of the reasonably informed and fair-minded lay observer, who might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it.
50 There are some similarities between the procedure involving a reference to the Immigration Assessment Authority under Part 7AA of the Migration Act, and an application to the Tribunal to review a decision under Part 7 of the Act. There are two features to which I will draw attention. The first is that the definition of Part 7-reviewable decision in s 411(1) excludes a decision to refuse to grant a protection visa relying on the disqualifying criteria in ss 5H(2), s 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, which is separately reviewable under s 500(1)(c) of the Act, and that a decision by a delegate of the Minister to refuse a visa on character grounds in the exercise of discretion under s 501 is separately reviewable by the Tribunal under s 500(1)(b). Therefore, like the referral to the Authority considered in CNY17, character-related grounds do not form part of the basis for the review by the Tribunal. The second feature is that, in terms that are similar to s 473CB(1)(c) of the Act which relates to reviews by the Authority that was relevant to the outcome in CNY17, upon being notified of an application to the Tribunal for review of a Part 7-reviewable decision, s 418(3) of the Act requires the Secretary to give to the Registrar of the Tribunal "each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision".
51 Otherwise, there are material differences between the procedure applying to a review by the Tribunal, and the basis on which the Authority reviews a decision. Those differences include the following. The obligation on the Tribunal under s 414 of the Act to review the delegate's decision is not constrained in the way that a review by the Authority is undertaken pursuant to s 473DB, where the review may be undertaken by considering the review material provided to the Authority by the Secretary without interviewing the applicant, and without accepting or requesting new information except as provided for in s 473DC and s 473DF. An applicant before the Tribunal may provide a statutory declaration in relation to facts that the applicant wishes the Tribunal to consider, and may make written arguments: s 423. Generally, the Tribunal must invite the applicant to appear before the Tribunal and to give evidence: s 425(1). Subject to exceptions, under either s 424AA or s 424A the Tribunal is required to give an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review, whereas under s 473DE the corresponding obligation of the Authority relates only to "new information". This limitation in s 473DE was relevant in CNY17, because none of the material given to the Authority by the Secretary would have been "new information" requiring any disclosure under s 473DE, thereby contributing to the perception that the information was "hidden".
52 It is necessary to say more about s 424A(1) of the Migration Act, the text of which is as follows -
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
53 Section 424A was invoked by the Tribunal in this case by writing the letter to the appellant to which I referred at [10]-[13] above, which was relied on by counsel for the appellant as contributing to a reasonable apprehension of bias. Section 424A has as its object the provision of procedural fairness to an applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [50] (McHugh J). Section 424A(1)(a) depends upon the Tribunal forming an opinion that certain information would be (not which could be, or might be) the reason or a part of the reason, for affirming the decision that is under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [24]-[25] (French CJ, Heydon, Crennan, Kiefel and Bell JJ). The use of the future conditional tense "would be" in s 424A rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (SZBYR) at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), cited in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [9] (Gageler, Keane and Nettle JJ).
54 As with CNY17, in assessing the appellant's claims of apprehended bias I attribute to the fair-minded lay observer knowledge of the nature of the Tribunal's review function, the circumstances which led to the decision, and the context in which it was made, including key elements of the legislative scheme. I also take account of the fact that the fair-minded lay observer would understand that decision-making by the Tribunal "is a function of the real world" and that a decision-maker "must do the best on the material available after giving interested parties the right to be heard on the question": Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 882; 39 FCR 458 at 469 (Hill J, Gummow J and O'Connor J agreeing).
55 I am not persuaded that the primary judge was in error in rejecting the appellant's claim of apprehended bias. My conclusion is based upon the combination of the following considerations.
56 It follows from all of the judgments in CNY17 that the whole of the circumstances of the Tribunal's review may be considered in determining whether the fair-minded lay observer might apprehend that the Tribunal might not bring an impartial mind to bear on the resolution of the review. It was material to the conclusions of Nettle and Gordon JJ that the impugned information in the possession of the Authority had not been disclosed to the visa applicant or referred to in the reasons of the delegate or the Authority: see [96]-[99]. Their Honours also stated that an apprehension of bias might be counteracted by inviting a visa applicant to comment on adverse information to counteract it: [102]. And it was material to the reasons of Edelman J that the Authority had not stated that the irrelevant and prejudicial material had been disregarded: [111], [141]. As for the minority, Kiefel CJ and Gageler J stated at [20] that -
The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises [citing Webb v The Queen at 55, 73-74]. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.
57 As to the information about the fingerprints, it is not clear from the primary judge's reasons that this information was subject to an acceptance before his Honour that the information was irrelevant and prejudicial. That is because the fingerprinting information was not particularised in the amended originating application, and the primary judge did not consider it in determining the appellant's claim of apprehended bias. It is open to think that information going to the appellant's identity and his migration history might have been relevant to the reliability of the claims for protection that he advanced, and the first Tribunal identified in its s 424A letter that the fingerprinting information would be a reason or part of a reason for rejecting the appellant's claims. The second Tribunal also referred to the fingerprinting information in its s 424A letter to the appellant. In the result, the Tribunal on the second occasion treated the information about the fingerprinting as not relevant to the appellant's claims, and gave it no weight. While I have accepted the submission of counsel for the appellant that the parties had agreed that the information was prejudicial and irrelevant for reasons including that the submission was not disputed by counsel for the Minister, that acceptance does not answer the question in issue. For one thing, there are degrees of materiality and prejudice that may be taken into account in evaluating the question in issue, which is whether the fair-minded lay observer might reasonably have apprehended in the totality of the circumstances that there might have been a departure from the standard of independent decision-making, uninfluenced consciously or subconsciously by the extraneous considerations that were the subject of the parties' submissions.
58 The impugned information was not hidden from the appellant. The fingerprinting information was disclosed by the first Tribunal to the appellant in a s 424A letter, and the appellant then denied any knowledge of it. The fingerprinting information was then disclosed by the second Tribunal in its s 424A letter, and the appellant again denied knowledge of the information, stating that it was "irrelevant and baseless".
59 The fact that the appellant had convictions for family violence offences was disclosed by the appellant in his application for a protection visa in response to standard questions concerning criminal history that were in the form. It appears that the Tribunal raised the appellant's convictions for family violence offences with him at the hearing, because the appellant referred to this in his response to the Tribunal's s 424A letter. The fact of the appellant's convictions in 2016 for family violence offences was an inescapable part of the narrative that was relevant to the appellant's claims. That was because the occasion for the appellant's application for a protection visa was, as the parties accepted in the proceeding below, the cancellation of the appellant's then existing visa upon his criminal conviction, and the appellant's delay in making his application and his reasons were permissible considerations in assessing the reliability of his claims for protection.
60 In CNY17 and FSG17, it might have been open to attribute to the fair-minded lay observer a real sense of disquiet about how or why the impugned information in those cases came to be provided to the Authority, which comprised reviewers engaged under the Public Service Act 1999 (Cth): Migration Act, s 473JE(1). However, no such sense arises in this case. There was no apparent anomaly in the Secretary providing the appellant's visa application to the Tribunal pursuant to the obligation under s 418(3) of the Act. Further, I do not consider that the evidence supports any perception of irregularity in the Secretary providing the fingerprinting information to the Tribunal.
61 Although it is an accepted fact that the appellant's convictions for family violence offences and the fingerprinting information were "irrelevant and prejudicial", I do not consider the fact that the Tribunal raised them for comment on the premise that they would be a reason or part of the reason for affirming the delegate's decision reasonably gave rise to an apprehension of bias having regard to all the circumstances. The requirement to give notice under s 424A is part of a decision-making process which is dynamic, and which contemplates that any view that the Tribunal takes at the time of sending the notice may be provisional only, and is subject to reconsideration by the Tribunal after receiving a response. It is a consequence of the inquisitorial process and the statutory obligations of procedural fairness that the Tribunal must articulate for comment views that might be flawed, or which might not be fully formed or final, including views that might later be put to one side. The fair-minded lay observer would take notice of the text of the Tribunal's letter to which I referred at [10] above where the provisional nature of the views was identified. The fair-minded lay observer would reasonably understand that decision-making in the real world might involve the Tribunal, as it did in this case, changing its views between the time of the s 424A letter, and the time of its decision. This is an aspect of s 424A that was referred to in SZBYR at [17], namely that the operation of s 424A(1) is determined in advance and independently of the Tribunal's reasoning on the review.
62 It is also important to bear in mind that the Tribunal member was a professional decision-maker, albeit not a judicial decision-maker. The law seeks to insulate some lay decision-makers, such as jurors, from certain irrelevant and prejudicial information. Even then, any injustice that might be caused by the reception of irrelevant and prejudicial information may be cured by directions to the jury: see, eg, Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; 54 CLR 200 at 211 (Latham CJ) and 217 (Dixon J). The fair-minded lay observer would view a professional decision-maker such as a member of the Tribunal differently to a lay decision-maker. Unlike a jury, where the trial judge rules on admissibility, a Tribunal member will be expected to be capable by reason of training and experience of separating the relevant from the irrelevant in coming to a decision. This is one attribute of a judicial decision-maker which, in the present circumstances, it is appropriate to ascribe to a member of the Tribunal and which distinguishes the professional decision-maker from the lay decision-maker. As the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [140] -
Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding.
63 In this respect, the position of the Tribunal is also different from that of the Authority, which is required to review the referred decision "by considering the review material provided to the Authority under section 473CB": s 473DB(1).
64 That brings me to the prejudicial nature of the impugned information. I accept that the information was prejudicial, and that if brought into account was capable of influencing the Tribunal in its decision. This could not be controversial, because the Tribunal by its s 424A letter stated that the impugned information would be the reason or part of the reason for affirming the decision under review. The question becomes whether the information was so prejudicial that the fair-minded lay observer might think that the Tribunal might not disregard the information, notwithstanding its express statements in its reasons that it gave the information "no weight". This is where it is necessary to bear in mind that the question whether a reasonable apprehension of bias exists is one that is largely factual, and that each case is different. It is therefore not always useful to compare the facts of one case with the facts of another except for the purpose of gaining a better understanding of the principles of law that are involved: see Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J). Subject to that qualification, I observe that in FSG17, the information that was provided by the Secretary to the Authority was extremely potent, because it included an allegation of sexual offending against a vulnerable child. As recognised by the Full Court in that case, some sexual crimes involving a vulnerable child have the potential to be so prejudicial that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind. In CQZ15, the information that was provided to the Tribunal included allegations about apprehended violence orders, and included in particular an unfavourable credit assessment of the visa applicant. As to CNY17, it is necessary to bear in mind that it was the combination of circumstances that gave rise to the reasonable apprehension of bias, not the least of which was the statutory framework in which the Authority operated, and not the mere fact that the Authority had been given irrelevant and prejudicial information.
65 In all the circumstances of this case, while crimes involving family violence may be extremely serious, I do not consider that the information about the appellant's convictions was so potent that it could not, in the eyes of the fair-minded lay observer, be put to one side by the Tribunal. Further, unlike the circumstances in CNY17, for the reasons that I have given there was no apparent irregularity about the circumstances in which the Tribunal received the information that would contribute to a reasonable apprehension of bias by reason of the Tribunal's possession of the information. And as I have explained, the fair-minded lay observer would accept that consistently with the object of s 424A, the Tribunal might express provisional views, as it did in the letter given to the appellant in this case, and might then change those views without the possible perception that subconsciously it might maintain or be influenced by those views. Indeed, there would be some level of incoherence with the statutory scheme if particulars of information disclosed to a visa applicant pursuant to an obligation of procedural fairness under s 424A would lead the fair-minded lay observer to think that the Tribunal could not thereafter change its mind about the relevance of the information. Having written to the appellant in this provisional way pursuant to s 424A, it follows that it was appropriate for the Tribunal to state in the reasons for its decision the fact and content of its s 424A letter, the content of the appellant's response, and the process of reasoning the Tribunal undertook in determining that the information was irrelevant. To do so was in accordance with the Tribunal's obligation under s 430 of the Act to give reasons for its decision, and did not contribute to a reasonable apprehension of bias.
66 For these reasons, there was no error by the primary judge in rejecting the appellant's claim of apprehended bias. I turn now to the first ground of appeal.