CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

2.2 Second IAA decision 20 The IAA notified the appellant on 19 December 2019 that the matter had been remitted to the IAA for reconsideration. 21 The IAA wrote to the appellant (via his lawyers) on 15 January 2020. This letter said: The IAA has received the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act) (the review material). This includes a copy of the High Court decision CNY17 and Minister for Immigration and Border Protection and Anor [2019] HCA 50. This decision contains references to, and general descriptions of, 48 pages of information that the Secretary provided the IAA in 2017 (see [33]-[37], [81], [111] and [119]-[124]). Those documents have not been provided to the IAA with the review material in the present matter and are not before the IAA. This information does not appear on its face to be relevant to the review. However, if you wish to do so you are invited to comment on the information referred to in the Court's decision. 22 In response to a letter in reply querying the relevance of the High Court decision, the IAA wrote again to the appellant (via his lawyers) on 21 January 2020 saying: To avoid any doubt, the IAA does not consider the information identified in the High Court decision (and our letter of 15 January 2020) to be relevant and does not intend to consider it. The IAA does not consider that the information would be the reason or part of the reason for affirming the decision under review. Having regard to the High Court's observations at [101]-[103], [124] and [141], the IAA is providing opportunity to comment on this approach. Please provide any response, including confirming if you do not wish to comment further, by 24 January 2020. (Emphasis in original). 23 On 29 January 2020, the appellant's lawyers responded saying: 3. Given the Secretary provided the prejudicial material to the Authority under s 473CB, the Secretary considered the prejudicial material 'to be relevant to the review': s 473CB(1)(c). Section 473DB(1) of the Act prescribes that the Authority 'must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB' (emphasis added). 4. Therefore, as the Secretary has decided that the prejudicial material is 'relevant', the Authority is compelled to consider it. This is regardless of the fact that the Authority's letter of 21 January 2020 states it 'does not intend to consider it'. 5. Any attempt to neutralise the risk of bias by affording [the appellant] an opportunity to comment on the prejudicial material, will not necessarily erase the risk of subconscious prejudice: see Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 per Griffiths J at [75]. 6. In light of the above, [the appellant] requests that the matter be reconstituted to a different reviewer, without a copy of the prejudicial material. (Emphasis in original). 24 On 4 February 2020, the IAA affirmed the decision of the Minister to refuse to grant the appellant a protection visa under s 473CC(2)(a) of the Act. The IAA's reasons include this: 4. I have considered the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act) (the review material), subject to the following. 5. The [appellant]'s SHEV application and the delegate's decision refer to the [appellant] being charged with offences relating to an incident while he was in immigration detention. The High Court's decision in respect of the first IAA decision states that there was certain additional information in the material provided to the IAA in 2017 that, in the Court's view, was not relevant to the review. As foreshadowed by the Court, that information is not included in the review material that is now before me, nor is it referred to in the [appellant]'s submissions to the IAA (considered further below). However, it is described and summarised in the Court's decision, which is in the review material. On 15 January 2020, the IAA wrote to the [appellant] (via his agent) advising [that it had received a copy of CNY17 HCA from the Secretary, that the information referred to in the decision did not appear to be relevant to the review, and providing the appellant with an opportunity to comment on the information]. … 7. On 29 January 2020 the [appellant]'s agent sent a further response on behalf of the [appellant], which expressed the view that the IAA would be compelled to consider the prejudicial material and that affording the [appellant] an opportunity to comment would not necessarily erase the risk of subconscious bias. The response conveyed a request from the [appellant] for the matter to be reconstituted to a different Reviewer, without a copy of the prejudicial material. 8. I have taken the [appellant]'s response into account; however the Secretary did not provide the "prejudicial material" that was provided to the first Reviewer, but only the High Court decision itself, which is before me in any event, as the judgment remitting this matter to the IAA. To the extent that the High Court decision refers to the prejudicial material, it is in the context of general descriptions and is not the actual material itself. For clarity I confirm that although I am aware that the [appellant] has been charged with offences while in immigration detention, the offences (as he disclosed in the SHEV application) are irrelevant to the [appellant]'s credibility, his claims for protection and my assessment. I have not found it necessary to further consider this issue. In making my assessment, I have disregarded the information in those parts of the High Court's judgment which summarise and describe the irrelevant information given to the IAA in 2017. 25 As noted, the Federal Circuit Court dismissed the appellant's judicial review application of the second IAA decision including on the ground of apprehended bias alleged to result from the Secretary providing the reconstituted IAA with a copy of CNY17 HCA. 26 The appellant's appeal to this Court is on a single ground as follows: The primary judge erred in finding that the [IAA] statement that it would not consider the prejudicial but irrelevant material that was before it was sufficient to assuage the risk that a reasonable observer might apprehend that the IAA's decision might be affected by subconscious bias in respect of that material.

3. Consideration 27 I am not satisfied that, in all of the relevant circumstances, the fair-minded lay observer might reasonably apprehend that the IAA might not have brought an impartial and unprejudiced mind to the resolution of the application for review of the Minister's decision leading to the second IAA decision. 28 It is apparent from CNY17 HCA at [20] and [135] that the question of apprehended bias is to be resolved by reference to all relevant circumstances as they exist at the time the question is answered. In the present case, the question is being answered after the second IAA decision. Accordingly, the decision and the reasons for it are part of the relevant circumstances required to be considered. I do not consider Nettle and Gordon JJ in CNY17 HCA at [68]-[72] to be suggesting otherwise. The points their Honours make in [68]-[70] are: (a) the issue of apprehended bias can (and, indeed, should) be raised as soon as the apprehension is alleged to arise, (b) the test for apprehended bias (the "double might" test) does not depend on the apprehension being realised in the reasons (as this would involve actual bias), and (c) any disavowal of the existence or effect of actual bias in the terms of a decision, or the reasons for the decision, cannot be relevant. 29 In respect of proposition (c), for example, I accept that a statement by a decision-maker that "this irrelevant material has had no subconscious effect on my decision" cannot be relevant. It is also apparent, however, that their Honours were not suggesting that a different statement by a decision-maker, such as "I have disregarded this irrelevant material", is irrelevant to the question of apprehended bias. In the former example, the decision-maker cannot logically make the statement, so it cannot rationally be attributed relevance by the posited fair-minded lay observer. In the latter example, the decision-maker can logically make the statement, so it can rationally be attributed relevance by the posited fair-minded lay observer. 30 The context of the observations of Nettle and Gordon JJ at [68]-[72], particularly the quoted extract from Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] considering the difference between apprehended and actual bias, discloses that their Honours were not suggesting that when a decision is challenged for apprehended bias after the decision has been made, the reasons for decision are irrelevant. It is apparent that Nettle and Gordon JJ accepted this, given their observation in CNY17 HCA at [99] that it was relevant that in the first IAA decision the IAA did not "expressly state that the material had been put to one side". This fact, they noted in footnote 115, was in contrast to the position in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [77]. 31 Similarly, in CNY17 HCA Edelman J at [111] said: It appears from the index of the court book before the Federal Circuit Court that the 48 pages of irrelevant material comprised a very large part of the material provided to the Authority. And yet, the Authority, a professional decision maker, did not suggest that any of that irrelevant and prejudicial material that it had considered had been disregarded or had been given no weight. In these circumstances, 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. The apprehension might be that the Authority might have formed adverse views of the appellant's character and, consciously or subconsciously, might have acted upon those adverse views when reaching conclusions on the issues in dispute either directly, or indirectly by the effect on its assessment of the credibility of the appellant. 32 In MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11, O'Callaghan and Colvin JJ (Allsop CJ agreeing) also concluded at [47] that in CNY17 HCA: … it appears that the High Court did not embrace the notion that, in a case like the present [where the issue of apprehended bias was to be resolved after the making of the decision] which is concerned with a claim based upon irrelevant but prejudicial material being before the decision‑maker, the evaluation as to whether there was jurisdictional error by reason of apprehended bias is confined to a focus upon the point at which the material is first considered by the decision‑maker. 33 Their Honours also referred at [48] to FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 in which the question posed at [35] was whether an "express disavowal of consideration of prejudicial material by the Immigration Assessment Authority could be brought to account as a matter that would 'assuage the risk that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review'". Given the highly prejudicial nature of the information in FSG17, the Full Court concluded at [42] that "a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority's approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information". 34 I agree with the appellant that it is not an answer to the allegation of apprehended bias that the fair-minded lay observer can be taken to have understood that members of the IAA would be familiar with judgments concerning the validity of the IAA's decisions. In the present case, the fair-minded lay observer also would have understood that such familiarity would not have informed the IAA that the person the subject of the second IAA decision was the same person as the subject of the High Court's decision in CNY17 HCA. The fair-minded lay observer would appreciate that the Secretary giving a copy of CNY17 HCA to the differently constituted IAA for the specific purpose of the making of the second IAA decision under s 473CB(1)(c) of the Act is not the same as the IAA receiving that judgment from the High Court in its institutional capacity as a party to the proceeding. This is because the act of the Secretary giving the differently constituted IAA the High Court judgment was a result of the Secretary considering the judgment relevant to the review and the effect of this was to disclose to the IAA that the person subject of the second IAA decision was the same person as the subject of the High Court's judgment. For this reason the reference in the IAA's decision to the fact that the High Court's judgment was before the IAA "in any event" is not determinative. It cannot be inferred that, but for the Secretary having provided the High Court's judgment to the IAA in connection with the review, the IAA would have known that the decision related to the appellant or that the Secretary considered the judgment to be relevant to the review. 35 This said, I also accept that the fair-minded lay observer would understand from the relevant circumstances that although the Secretary gave a copy of CNY17 HCA to the differently constituted IAA for the purpose of the making of the second IAA decision, the Secretary did not give a copy of the primary material which had caused the first IAA decision to be vitiated. The IAA said this in both its communications to the appellant and its reasons for decision. 36 Further, I consider that the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court. This is a fundamental aspect of the rule of law (see, for example, Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70, cited in SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 at [17]). It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error. 37 This does not mean that the provision of a judgment by the Secretary to the IAA for the purpose of a review can never give rise to a reasonable apprehension of bias where the judgment contains irrelevant and prejudicial material about the person the subject of the decision. Indeed, where a judgment concerns only the apprehension of bias by reason of the provision to the IAA of irrelevant prejudicial material and nothing else, the prudent administrative course would be for the Secretary not to provide that judgment to the IAA for the purpose of the new review. This is because it may be that the judgment identifies the irrelevant prejudicial material in such a way that the real possibility of a potential subconscious effect of the material in the judgment on the decision-making of the IAA might not be able to discounted. In such a case, provision of the judgment would negate the effect of an order such as the High Court made in the present case that the review be remitted to a differently constituted IAA. 38 Each case, however, will depend on its own facts. 39 Further again, while the hypothesised fair-minded lay observer "is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system" and thus is not posited to reason like a lawyer (Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 at [21]), that hypothesised observer is to be attributed in the present case with knowledge of the key aspects of the statutory scheme (including, by operation of s 473DB(1), that the IAA must conduct its review "by considering the review material" provided under s 473CB) and the key aspects of the circumstances within which the second IAA decision was to be made. Those key aspects of the circumstances include that the IAA had to make the second IAA decision as a result of the High Court's decision in CNY17 HCA. 40 The fair-minded lay observer would be attributed with knowledge of the fact that the effect of the orders of the High Court in CNY17 HCA was that the appellant's application had to be referred again by the Minister to the IAA for review under s 473CA of the Act. Further, because s 473EA(4)(a) of the Act provides that after the IAA makes a written statement of its decision under s 473EA(1) of the Act, it must "return to the Secretary any document that the Secretary has provided in relation to the review", it was also necessary that the Secretary exercise anew the duty under s 473CB(1) of the Act. 41 As discussed, the fair-minded lay observer would be attributed with knowledge that while it was not necessary for the Secretary to give the IAA a copy of CNY17 HCA, the Secretary might do so on the basis that the IAA should be given a copy of any judgment potentially relevant to the IAA performing its functions. This is so even if, as in the present case, the judgment concerned what could not be done with respect to the appellant without vitiating any decision of the IAA on the ground of a reasonable apprehension of bias. 42 The appellant contended that the fair-minded lay observer would not distinguish between the primary material which caused the majority in High Court in CNY17 HCA to decide that the first IAA decision was vitiated because of apprehended bias and the summary of that material contained in the High Court's reasons for decision in CNY17 HCA. However, this proposition does not confront certain facts, knowledge of which would be attributed to the fair-minded lay observer. In particular, the fair-minded lay observer would understand that: (1) the High Court considered that the primary material was irrelevant to the IAA's decision; (2) the High Court had to identify why the primary material was prejudicial to the appellant and, accordingly, had to refer to the substance of that material albeit in summary form; and (3) the High Court (at least by majority) considered that the provision of the primary material to the IAA vitiated the first IAA decision because it gave rise to a reasonable apprehension of bias. 43 With this knowledge, it could not be concluded that the fair-minded lay observer, acting reasonably, might infer that the IAA differently constituted for the making of the second IAA decision might not bring an impartial mind to bear on the decision it had to make. This could not be inferred because in giving the judgment in CNY17 HCA to the differently constituted IAA there was no reasonable possibility of the fair-minded lay observer considering that the summary of the irrelevant prejudicial material in the High Court's judgment might: (a) be taken by the IAA as an instruction, advice or opinion concerning the desired outcome of the IAA's second decision, or (b) have a subconscious effect on the IAA's assessment of the appellant's credit when his credit was material to the decision to be made. 44 Neither (a) nor (b) is a real possibility because the summary of the irrelevant prejudicial material in the High Court judgment is in a context which: (a) in the case of (a), makes plain that the Secretary cannot lawfully give to the IAA any instruction, advice or opinion concerning the desired outcome of the IAA's second decision, and (b) in the case of (b), makes plain that the material cannot be taken into account. 45 While, as Nettle and Gordon JJ said in CNY17 HCA at [98], "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" (emphasis in original), the "information" in the present case (unlike in CNY17 HCA) is not the primary material. It is the summary of the prejudicial material in the High Court's judgment, a judgment instructing the reader that not only is the primary material irrelevant, but also that the primary material cannot be given by the Secretary to the IAA for the IAA second decision because it is prejudicial in a manner giving rise to a reasonable apprehension of bias by the IAA as decision-maker. Nor was the IAA reading the information in a vacuum. It must be inferred that from the outset, the IAA was reading the information in the context of the judgment as a whole. 46 While these observations about proposition (b) above cannot preclude the possibility of the IAA being unable to remove the subconscious effect of the summary of the irrelevant prejudicial material, it is also the case that the substance of that summary in the judgment would be known to the fair-minded lay observer. The fair-minded lay observer would be attributed with knowledge that the High Court's summary described the irrelevant prejudicial material in particular ways. Examples include these descriptions (emphasis added): [96] … 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. … [110] … The Secretary had provided the Authority with 48 pages of irrelevant and prejudicial material involving prejudicial opinion, innuendo and tacit suggestion, on the basis that the Secretary considered that the material was relevant to the review. … [118] The material provided by the Secretary to the Authority for the purposes of the review included considerable information, innuendo and opinions about the appellant's character over 48 pages. … [120] One category of the irrelevant material provided by the Secretary to the Authority concerned periods of detention of the appellant and offences or alleged offences committed by the appellant. [121] … It included descriptive language and suggestions of grave concerns when describing the appellant's criminal charges in November 2015… [122] A second category was material that, by vague suggestions and opinions, had the potential to raise concerns about permitting the appellant to become a member of the Australian community…. [123] A third category was material that might have tacitly suggested that the appellant might be a national security risk… 47 The fair-minded lay observer would also know that, unlike the circumstances in CNY17 HCA, this is not a case where the fact that the Secretary had given the differently constituted IAA a copy of CNY17 HCA was not known by the appellant. As Nettle and Gordon JJ observed in CNY17 HCA at [100], 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". 48 In the present case, however, the fair-minded lay observer would know both that the IAA had given the appellant notice of the fact that the Secretary had given it a copy of CNY17 HCA and that the IAA considered that this information was not relevant to its review and that it did not intend to consider this information. 49 I do not accept the appellant's argument that the giving of notice by the IAA of receipt of the High Court judgment and provision to the appellant of an opportunity to comment are immaterial to the question whether there is a reasonable apprehension of bias. While the hearing and bias rules are different (as discussed in FSG17 at [41], citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [19]) and serve different aspects of requirements of justice, the giving of notice and an opportunity to comment to a person about information held by the decision-maker are not logically irrelevant to the application of the "double might" test for the apprehension of bias. So much is clear from the reference by Nettle and Gordon JJ in CNY17 HCA at [100] to the potential effect of "hidden" information on the mind of the fair-minded lay observer. 50 These conclusions do not attribute to the fair-minded lay observer a sophisticated understanding of the difference between a mere allegation and proof of an allegation. They attribute to the fair-minded lay observer qualities of both fairness and reasonableness which are essential characteristics of this legal construct. 51 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 at [95]-[99] does not support a different conclusion. The points being made in those paragraphs are that the focus of the required legal construct (the reasonable apprehension of the fair-minded lay observer) reflects not just that the relevant criteria is whether it might be apprehended that the decision-maker might not act impartially, but also the principle that justice must both be done and be seen to be done. 52 In the present case it is the combination of the particular circumstances which leads to the conclusion that the "double might" test for apprehended bias is not satisfied by reason of the posited possibility (real and not remote) in the mind of the fair-minded lay observer (the first "might" requirement relating to the apprehension) that the IAA might not bring an impartial mind to bear on the decision (the second "might" requirement relating to the subject of the apprehension, that justice might not be seen to be done). The most important circumstance is the context within which the irrelevant prejudicial information appears and would have become known to the IAA, being a judgment of the High Court explaining why the material is irrelevant and characterising it as, amongst other things, "assertions", "prejudicial opinion, innuendo and tacit suggestion", and "vague suggestions and opinions". Other important circumstances include: (a) the IAA's disclosure of the fact that it had been given the judgment by the Secretary and immediately identified it as irrelevant in its view, (b) the opportunity the IAA gave to the appellant to comment on the judgment, and (c) the clear statements in the IAA's reasons that it had not been given the primary material the High Court found to give rise to the reasonable apprehension of bias and had disregarded those parts of the High Court's judgment which summarise and describe the irrelevant information given to the IAA in 2017. 53 Accordingly, the appeal must be dismissed with costs. 54 I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.