NETTLE AND GORDON JJ. A decision by a delegate of the first respondent to refuse the appellant's application for a protection visa was referred to the Immigration Assessment Authority ("the IAA") for review under Pt 7AA of the Migration Act 1958 (Cth). The Secretary of the Department was required to give to the IAA, among other things, "any other material that [was] in the Secretary's possession or control and [was] considered by the Secretary (at the time the decision [was] referred to the [IAA]) to be relevant to the review". The IAA had to review the decision "by considering the review material provided to [it]" by the Secretary, without accepting or requesting new information, and without interviewing the appellant. Unbeknown to the appellant, the Secretary gave the IAA material which was not only irrelevant but prejudicial to him. The question in this appeal is whether a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the IAA might not bring an impartial mind to the decision before it as a result of that information being given to it.
The answer to that question is "yes". A fair-minded lay observer, cognisant of the way Pt 7AA works, including the role of the Secretary, might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider. The source of the apprehended bias is the irrelevant and prejudicial material. That material might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that the appellant was not a person who should be believed. A fair-minded lay observer might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious.
The other grounds of appeal concerning an opportunity for the appellant to be heard, the lawfulness of the actions of the Secretary of the Department, and jurisdictional error do not arise once this conclusion is reached.
Apprehended bias
The rule against bias for judicial and administrative decision-makers is long standing. The public is entitled to expect that issues determined by judges and other public office holders should be decided, among other things, free of prejudice and without bias. Bias, although incapable of precise definition, "connotes the absence of impartiality".
The rule against bias is one aspect of the requirements of procedural fairness. Breach of the rules of procedural fairness, including where apprehended bias is demonstrated, constitutes jurisdictional error, attracting relief under s 75(v) of the Constitution.
As the rule applies to any decision which is subject to the principles of procedural fairness, it applies "not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers". The rule is concerned with public confidence in the administration of justice. It is important to the quality of decisions being made and to the confidence and cooperativeness of individuals affected by those decisions. By enhancing the appearance and actuality of impartial decision‑making, it fosters public confidence in decision-makers and their institutions.
The test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide". A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is "reasonable" is not assisted by philosophical conceptions of the varieties of seriousness or materiality.
The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker's impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb v The Queen, in relation to disqualification by extraneous information, "knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias". Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?
In applying the test, "it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made". It is also necessary to consider "what is involved in making the decision and the identity of the decision‑maker". This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making". The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair‑minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".
Where, however, as here, the statutory context is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme. In this case, those key elements, summarised below, are not themselves overly complex. It is necessary to consider the statutory regime.
Statutory context
Part 7AA of the Migration Act provides the process for review by the IAA of decisions made by delegates of the Minister. The IAA is to "pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)" (emphasis added). Part 7AA furthers that objective by creating a "fast track reviewable decision" which the Minister administering the Migration Act (or his or her delegate) is obliged to refer to the IAA as soon as reasonably practicable after that decision is made.
Part 7AA applies only to a "fast track applicant" and a decision to refuse the applicant's visa application must not have been made because of the character test in s 501 of the Migration Act, or on the basis of s 5H(2), 36(1C), or 36(2C)(a) or (b) of the Migration Act. Those latter provisions are concerned primarily with excluding people who the Minister has serious reasons for considering have committed certain international crimes, a "serious non-political crime" before entering Australia, or acts contrary to the purposes and principles of the United Nations or who the Minister considers, on reasonable grounds, would be a danger to Australia's security, or a danger to the Australian community having been convicted of a "particularly serious crime". Where those provisions are relied upon in making a decision to refuse a visa, the decision will be reviewed by the Administrative Appeals Tribunal, rather than by the IAA. Those provisions were not relied upon in refusing the appellant's protection visa.
A number of other aspects of the Part should be emphasised.
First, s 473CB(1) requires the Secretary of the Department to give the following review material to the IAA: (a) a statement setting out the facts found by the decision-maker, the evidence on which those findings were based and the reasons for the decision; (b) material provided by the applicant to the decision‑maker before the decision was made; (c) "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review"; and (d) certain contact details for the applicant. This appeal concerns para (c).
Second, s 473DA(2) provides that nothing in Pt 7AA "requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the [original] decision". Indeed, subject to the rest of Pt 7AA, the IAA must review the decision "by considering the review material provided to [it] under section 473CB", without accepting or requesting new information, and without interviewing the applicant.
The IAA does not have a duty to accept new information in any circumstances. Nevertheless, the IAA may "get" any documents or information which were not before the Minister which the IAA considers to be relevant, and may invite a person to give new information. Such "new information" gained under s 473DC must not be considered by the IAA unless it is satisfied that there are exceptional circumstances which justify its consideration, and the applicant satisfies the IAA that the new information could not have been provided to the Minister before the original decision was made, or is credible personal information which was not previously known but which may have affected consideration of the applicant's claims.
If the new information is considered by the IAA under s 473DD and would be the reason, or part of the reason, for affirming a decision, the IAA must give the applicant particulars of the new information. The IAA must also explain to the applicant why that new information is relevant to the review and invite the applicant to give comments on the new information, either in writing or at an interview. This obligation does not apply to "non‑disclosable information", information which is about a class of persons rather than the applicant themselves, or information which is prescribed by regulations.
It will be necessary to return to the application of the test for apprehended bias in the context of Pt 7AA of the Migration Act and the facts of this appeal. However, before doing so, it is both appropriate and necessary to consider why the question of apprehended bias should be considered before the other appeal grounds and, indeed, makes the consideration of those grounds unnecessary.
Order of consideration
The rule against bias is a principle of procedural fairness, and "principles of procedural fairness focus upon procedures rather than outcomes". The rule against bias is designed to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process. As four members of this Court said in Michael Wilson & Partners Ltd v Nicholls:
"An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made." (emphasis in original)
The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later.
Next, the test for apprehended bias does not rest on a finding of actual bias or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision. One needs only to find that the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits.
Finally, the remedies for apprehended bias reinforce the need to consider apprehended bias upfront. In cases of apprehended bias, recusal of the decision‑maker is a possible remedy and is available before a decision is made. Indeed, in Michael Wilson it was said:
"If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification [of a decision-maker] but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection."
Put in different terms, a remedy for apprehended bias should be sought (and, if appropriate, made) at the earliest possible time. There is no utility in allowing a flawed process to run to its conclusion.
Here, the provision of irrelevant and prejudicial material to the IAA immediately raised an issue of whether a fair-minded lay observer might apprehend that the IAA might, as a result of the provision of that information, not bring an impartial mind to the resolution of the review. As will be seen, that question of bias having arisen and been considered, it is not necessary in the circumstances of this appeal to go on to consider issues of jurisdictional error which may have otherwise affected the IAA's final decision.
Factual context
The appellant arrived in Australia on 13 August 2013. He was detained on Christmas Island and was unable to apply for a visa because of the bar in s 46A of the Migration Act. He broke a window on 20 March 2015 while in detention and was charged with damaging Commonwealth property ("the March 2015 incident"). He pleaded guilty, was convicted and was released without sentence, on condition of good behaviour for six months and the payment of $820.60 in reparation.
The Minister lifted the s 46A visa application bar for the appellant on 29 September 2015.
In November 2015, there were protests on Christmas Island. The appellant was charged, he said in his visa application, with "spitting at a guard & breaking a window" during the protests ("the November 2015 incident"). The appellant was transferred to a correctional facility on 12 November 2015.
The appellant lodged an application for a safe haven enterprise visa on 16 September 2016. He disclosed his conviction from the March 2015 incident, and the pending charges from the November 2015 incident. In relation to the March 2015 incident, the appellant's form also said "[t]here may be further updates on the cases".
The visa application was refused on 14 March 2017. By letter of that date, the Department advised that the decision had been referred to the IAA. The Department said it had provided the IAA with the decision record, material given by the appellant to the Department, and "any other material the Department considers to be relevant to the review". That material was not identified.
The appellant then received a letter from the IAA dated 23 March 2017. It stated that the Department had provided "all documents they consider relevant to your case", though these were not identified. The IAA stated that a decision would be made on that material, "unless we decide to consider new information", but this could only happen "in limited circumstances".
The IAA affirmed the decision on 12 May 2017, stating that it "had regard to the material referred by the Secretary under s 473CB of the Migration Act 1958". The material was not particularised.
The Minister identified the material provided to the IAA only when the appellant sought judicial review of the IAA's decision. The material included departmental documents with the following assertions. First, that the appellant had a "history of aggressive and/or challenging behaviour when engaging with the [D]epartment", and had been "involved in many incidents while in detention" (without identifying the history or the incidents). Second, that he had been recommended for detention in a correctional facility while there was a police investigation into a "riot". Third, that Australian Border Force had advised the Department "to not engage" with the appellant (or other detainees) while in prison. Fourth, that the appellant was "no longer of interest to Det Intel" and was the subject of unspecified "on-going investigations". There was no identification of what, exactly, "Det Intel" referred to. Fifth, that he had been considered for release from detention on a Bridging E visa "on several occasions", which the appellant characterises as an implicit representation that his behaviour resulted in him not being granted those bridging visas.
The appellant never had these documents. The information in the documents went beyond what was provided by the appellant and, in many cases, it was information of which the appellant was not even aware. It is not known whether the delegate had the documents. The information outlined above was irrelevant to the task of the IAA. That information could only plausibly have gone to questions of whether the appellant was a danger to the Australian community, or had been convicted of a particularly serious crime. A decision on that basis could not have been made by the IAA.
The decisions below
In the Federal Circuit Court of Australia, Judge Street dismissed the appellant's application for judicial review of the IAA's decision. His Honour held that the information identified by the appellant was not such that a fair-minded lay observer might reasonably apprehend that the IAA might not bring an impartial mind to the determination of the matter on its merits.
The appellant appealed to the Full Court of the Federal Court of Australia. The appeal was dismissed by majority. Each judge gave separate reasons. Moshinsky and Thawley JJ both found that much of the information which the appellant claimed to be prejudicial was already contained in the original visa application and the delegate's reasons for decision. This included the conviction for the March 2015 incident and the charges for the November 2015 incident. The information which was not otherwise provided by the visa application or the delegate's reasons was irrelevant to the IAA's task, but not prejudicial enough to meet the test for apprehended bias.
Mortimer J would have allowed the appeal. Her Honour held that the material was "plainly adverse to the appellant's interest" in having matters concerning his credibility, the reliability of his narrative, his motives for seeking asylum and whether he should be granted a visa determined in his favour. Having considered the effect of individual pieces of information contained in the review material, her Honour came to the view that the material overall gave:
"a strong impression that the appellant was not trustworthy, that he was aggressive towards authority, that he challenged authority, that he was a person of interest to officers within the Commonwealth Government who were dealing with issues of sensitivity and of national security, that he had a disregard for Australian law and that overall, there were considerable, sustained concerns at an official level ... that the appellant posed a risk to the safety of the ... Australian community".
Submissions in this Court
The appellant, after noting that Pt 7AA preserved the bias rule, submitted that a fair-minded lay observer would be aware of how Pt 7AA of the Migration Act worked. The appellant submitted that the material provided to the IAA was "objectively irrelevant" and that the Secretary's error in providing it resulted in the IAA exceeding its jurisdiction, because the legislative scheme contemplates the IAA undertaking its review only on the basis of certain materials (which it needs to properly exercise its powers), not including the material impugned in this case.
The information in the review material was characterised by the appellant as being a character assessment at best, and a "character assassination" at worst. The appellant submitted that the material was capable of having a subconscious effect on the IAA, and that this gave rise to a reasonable apprehension of bias. The appellant further submitted that this apprehension was strengthened by the fact that the information was provided by the Secretary of the Department, who considered the material "relevant" to the review. The appellant accepted that the risk of bias could have been "neutralised" by affording the appellant an opportunity to comment on the material, but that was not done in this case.
The Minister said that if Pt 7AA required a decision-maker to consider information, that information could not logically cause the decision-maker to depart from the statutory task. The information in this case was initially said to constitute "background" to the IAA's decision. But during oral argument, the Minister accepted that describing the material as "relevant" to assessment of the appellant's credibility or claims to protection would be to draw "a very long bow".
The Minister further submitted that the information provided by the Secretary was not prejudicial. The reference to the appellant no longer being of interest to "Det Intel" was characterised as being "positive in character". A reference to the appellant being interviewed by the National Security Monitoring Section did not say anything about why that interview was held, and so could not lead to any inference on the part of a reasonable observer. The references to investigations into a "riot" on Christmas Island did not say that the appellant himself was under investigation. The reference to the appellant's history of aggressive or challenging behaviour was explained by reference to the appellant's mental health, evidence of which was otherwise before the IAA in any event. Although the Minister accepted that it may be possible for information to be put before the IAA which is so prejudicial as to raise an apprehension of bias, he submitted that the material in this case did not reach that level of prejudice.
The Minister also pointed out that some of the information said to be prejudicial had already been disclosed by the appellant himself, such as the existence of the pending criminal charges; that even if the material was irrelevant, the IAA was capable of putting that material aside for the purposes of making a decision; and that it would not lead a fair-minded lay observer to conclude that the IAA might not decide the case on its merits. The fact that the Secretary had provided the information, according to the Minister, conveyed no "official view" about its significance, and the over-provision of information by the Secretary would rarely, if ever, constitute an error. The Minister said that there was no prohibition on the Secretary providing additional material which was not strictly required by s 473CB. The Minister further submitted that there was no obligation on the IAA to seek any comment from the appellant on the material in light of s 473DA of the Migration Act.
As will be explained, the provision of irrelevant and prejudicial material to the IAA immediately raised an issue whether a fair‑minded lay observer might apprehend that the IAA might, as a result of the provision of that information, not bring an impartial mind to the resolution of the review.
Apprehended bias here?
What might lead the IAA to decide the appellant's case otherwise than on its merits? The presence of prejudicial material which was irrelevant to the question before the IAA and which the IAA was mandated to consider. As Deane J said in Webb, "knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias". Is there a logical connection between this and the feared deviation from deciding the case on its merits? Yes. The material was not relevant to the IAA's task. If it influenced the IAA, whether consciously or subconsciously, then the IAA would deviate from deciding the case on its merits.
In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one. It is therefore necessary to consider the facts of the case in light of the statutory context.
The fair-minded lay observer knows the key aspects of the statutory scheme, which are as follows. First, the Secretary must give the IAA any material which he or she considers to be "relevant" to the review. Second, the IAA must conduct its review "by considering the review material" provided under s 473CB. Third, it must do so "without accepting or requesting new information" and "without interviewing the referred applicant", except as provided by Pt 7AA. Fourth, the IAA has no duty to accept or request new information and must not consider it except in exceptional circumstances. Fifth, the IAA is under no obligation to give the applicant any material which was before the Minister.
The appellant was not aware of the information provided by the Secretary. The Secretary had decided that the information was "relevant". The IAA then had to consider that information, without the appellant knowing about that information or having any ability to comment on it.
The material was prejudicial to the appellant. The material included assertions that the appellant had a history of aggressive or challenging behaviour, had some link to investigations of a "riot" and was himself the subject of investigations for unspecified matters, had been of interest to "Det Intel", and had been refused bridging visas in the past. These matters had not been disclosed by the appellant in his visa application, and, in many cases, were information of which the appellant was not even aware. Nor were they disclosed in the reasons for the delegate's decision. There is a risk that such information would lead a decision-maker in the place of the IAA to have a bias against the appellant, possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community.
Of course, it does not matter whether the IAA actually had such a bias, or whether the IAA in fact put the prejudicial information aside. There is a risk of subconscious bias here, and that risk cannot be cured by putting the information aside.
The idea that the information could or would be put aside is also difficult to reconcile with the statutory scheme. As noted above, the Secretary endorses the information which he or she gives to the IAA as "relevant" to the IAA's task. The IAA then has to consider that information.
The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side.
Returning to the test, a fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as "relevant" by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair‑minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.
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.
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. Is this consistent with the statutory scheme? Yes. Section 473DA(2) says that "nothing in this Part requires the [IAA] to give to a referred applicant any material that was before the Minister" when the Minister made the original decision. But this says nothing about "what might be required of the [IAA] in particular circumstances in order to exercise [its] power [under s 473DC(3)] reasonably". The power in s 473DC(3) allows the IAA to get new information. While the IAA "does not have a duty to get, request or accept, any new information" in any circumstances, it may still invite an applicant to comment on information under s 473DC(3) if that would be the best way of avoiding an apprehension of bias.
That conclusion is reinforced by the statutory scheme. The IAA is statutorily obliged to "pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)" (emphasis added). The provisions concerning the giving and receipt of new information did not override the requirement that the IAA act free from bias.
Other appeal grounds
The Minister accepted that where apprehended bias is shown, it would be appropriate to grant relief under s 75(v) of the Constitution, subject to relief under s 75(v) being discretionary. In the circumstances of this appeal, where the Minister accepted that if apprehended bias was demonstrated, relief would be granted, the role (if any) of materiality in questions of jurisdictional error, and its precise metes and bounds, does not arise.
Moreover, given the conclusions reached on the question of apprehended bias in this appeal, it is unnecessary to address the other appeal grounds concerning an opportunity for the appellant to be heard, the lawfulness of the actions of the Secretary of the Department, and jurisdictional error on the part of the IAA resulting from the Secretary's allegedly unlawful actions. Indeed, given the conclusions on the question of apprehended bias, the process of the IAA in making the decision was not, and might not have appeared to a fair‑minded lay observer to be, a fair process. It is, for that reason alone, inappropriate and unnecessary to consider and address the legality of an outcome of that flawed process.
The Minister contended that quashing the decision of the IAA and remitting the matter back to it would put the IAA in an "impossible bind", because the IAA would once again be exposed to the prejudicial material. Any further decision it made would, therefore, be infected by the same apprehended bias found in this appeal. That submission should not be accepted. Section 473EA(4) of the Migration Act requires the IAA to return to the Secretary those documents provided by the Secretary, after the IAA's review is complete. Moreover, the matter would be remitted to a differently constituted IAA. As a result, the "impossible bind" spoken of by the Minister would not arise. The relief would not be futile.
Conclusion
For those reasons, the appeal should be allowed with costs. Orders 1 and 2 made by the Full Court of the Federal Court of Australia on 21 September 2018 and order 1 made by the Full Court of the Federal Court of Australia on 12 October 2018 should be set aside and, in their place, order that: