Islam v Minister for Immigration and Citizenship

20 On review by the Tribunal Mr Islam was unrepresented. His case, as I have noted was heard by the same Senior Member who had previously heard Senior Constable Sims' application for a surveillance warrant on 30 May 2008. 21 The hearing on 28 November 2008 was relatively short. Mr Islam was briefly questioned by the Senior Member, then cross-examined by the legal representative for the Minister. A number of areas were covered in cross-examination, including his recent breaches of bail (to which he admitted), convictions in 2004 and 2005, and his claimed rehabilitation. He was re-examined by the Senior Member and asked about his most recent breach of bail, and some supporting material was taken into account without objection. 22 In relation to the alleged aggravated burglary on 1 May 2008, both the Senior member and the Minister's solicitor were at pains to indicate that, as there had been no conviction, the incident would not be taken into account. It is necessary to draw attention to four brief extracts in the transcript of the hearing where reference was made to the offence. They are: (i) Tribunal Member: All right. Is there anything further you want to say about the application?---Well, basically, Senior Member, because of my - me being in custody, it does look very bad on my - on me on my character but I - I'm yet to await trial for this matter and I've pleaded not guilty and I'm pleading not guilty to this because I know I'm innocent but these charges that the police have charged me with but if - - - All right, I don't - probably we don't want to go into too much detail over that, but what you're telling me is you've pleaded not guilty for it?---Yes, I have. And if - if I wasn't charged with these offences, I don't think my visa would have been refusable. I don't see - if I was doing all the right things, the reason to cancel my visa because I was meaning to better my life. (ii) The Applicant: I'm innocent of these things that have been put forward to me, like, the current charges - - - Tribunal Member: Oh, well, I - you haven't been convicted of those so I certainly won't be - I'll - in fact, I can tell you I will not be taking that into account, I mean, you haven't been convicted of that so it's probably best you don't go into that. The Applicant: I appreciate it. (iii) Ms Linacre: Sorry - I'm sorry, Senior Member, but I must make a brief comment in relation to the charges. The Minister in fact wishes to place no weight and does not - place any reliance on those charges. Tribunal Member: On the current charges. Ms Linacre: That's right. Anything - - - Tribunal Member: I think that's right, I mean, I think when there's been no conviction it - there's really nothing we can take into account. Ms Linacre: That's right and the Minister would not ask you to place any weight or reliance on those factors. (iv) In relation to the publication of the applicant's name by the Tribunal in its decision: Ms Linacre: We have spoken to the director of Public Prosecutions in relation the criminal charges pending and his concern was that there be absolutely no possibility of any sorts of prejudice or failure that just be seen to be done in the sense that - - - Tribunal Member: Right. These matters, and you may be able to help this, Mr Islam, the matters that you presently have before the court, I don't want to know any details about them, could they end up in - on trial - could you end up on trial in the Supreme Court? The Applicant: That's a possibility, yes. Tribunal Member: All right. Well, that in itself seems to be a reason that it would be better not to publish it.

The Applicable Ministerial Policy Directive 23 Under s 499 of the Migration Act the Minister is empowered to give written directions in relation, amongst other things, to the Tribunal's exercise of its powers of visa refusal and cancellation under s 501 of the Act. Moreover, the Tribunal was obliged to comply with such a direction: s 499(2A). The operative Direction for present purposes was Direction No 21. 24 The scheme of the Direction envisaged a two stage process: Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.

25 It was, as I earlier noted, accepted by the applicant that he failed the character test. In light of his "substantial criminal record" (cf s 501(6)(a) and (7)), this was an inevitable concession. The matter of concern before the Tribunal was the exercise of its discretion to refuse the applicant's visa application. 26 Before turning to that matter, I should note that there is a variety of grounds which, if established, could lead to failure of the character test. Mr Islam failed it under s 501(6)(a). A quite distinct, and not presently relevant ground insofar as concerns the first stage of the Tribunal inquiry, is s 501(6)(c): a person will fail the test under it if: (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character. I simply note that, for the purposes of that ground, para 1.10 of the Directive makes relevant (see para 1.9 opening paragraph), conduct of the non-citizen that has: (a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to): s whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or s the seriousness of the offence with which the applicant has been charged … 27 I emphasise this for the following reason. The applicant contends that, while he was not found to have failed the character test of the s 501(6)(c) "general conduct" ground, the burden of that ground was made relevant at the second stage of the Tribunal's inquiry by reason of the requirements of the Directive. Insofar as presently relevant, the "Primary Considerations" to which the Tribunal had to have regard, that of particular significance was "the Protection of the Australian community": para 2.3(a). Of this criteria it was stipulated in para 2.5 of the Directive: 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). 28 In relation to para 2.5(b), the Direction provided: 2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment: (a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation; (b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and (c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make. (Emphasis added.)

The Tribunal's Decision 29 In summarising the evidence before it, the Tribunal commented of the aggravated robbery charge (which was not identified by type, though his previous conviction was for a similar offence): On 17 May 2008, Mr Islam was remanded in custody and taken to the Belconnen Remand Centre in relation to an alleged offence in May of 2008. I record that I do not take it into account in any way the allegations of an offence committed at that time as the matter has not been finalised.

30 On the issue of "protection of the Australian community", after referring to aspects of Mr Islam's criminal history and related court proceedings, the Tribunal observed: All of these considerations can only lead to the conclusion that the conduct in which Mr Islam has engaged in the past is of an extremely serious nature. In considering the likelihood that the conduct may be repeated it is of very considerable concern that at the age of now 22 Mr Islam has a criminal record in Australia of the seriousness of the one that he has acquired and that despite his protestations of feelings of guilt and of asking for further chances, that so shortly after conviction of one serious offence, he committed a second offence. I further take into account that even as recently as this year, he has disregarded Australian law in committing breaches of bail, again having, it seems, not taken the advantages of chances that he has been given. The Minister contends, given the seriousness of Mr Islam's criminal conduct and the fact that it was committed on more than one occasion, that there remains an unacceptable risk that Mr Islam may re-offend. It is submitted that in a situation where threats of violence are made against innocent members of the public, any risk of recidivism must be considered unacceptable. I agree with this argument and accept it. The Minister also contends that Mr Islam has made repeated claims that he is repentant and will reform, but has failed to do so. Again, on the facts before me, I accept this contention. (Emphasis added.)

31 In his concluding comments before affirming the delegate's decision, the Tribunal noted: As far as evidence of rehabilitation and recent good conduct, unfortunately the conduct of Mr Islam has not provided me with any evidence that this is a factor to be taken into account. … I also note that Mr Islam has been previously administered with a warning about the risk of deportation or Visa cancellation or refusal should his conduct continue. Unfortunately this warning appears to have not been taken seriously. (Emphasis added.)

(i) Reasonable Apprehension of Bias 32 While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[28]; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner, at [6]. 33 It is presently important to emphasise, as Hayne J did in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [184] that the development and application of the test of reasonable apprehension avoids the need for a court: … to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question.

34 Because, as will be seen, the application of this test in this matter does require an examination, amongst other things of the Tribunal's reasons, it is important to emphasise that the lay observer would be scrutinising those reasons through a quite different prism and by reference to a quite different contingency, than a judge would be when scrutinising a decision-maker's reasons for decision for the purpose of discerning an error justifying judicial review: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. To say this is not to accord the hypothetical observer licence to indulge in implausible or improbable interpretations of reasons for decision. The lay observer is expected first and foremost to be "fair minded". 35 Because of the manner in which the case was originally put, it is appropriate to refer as well to the further observation of Hayne J in Jia Legeng (at [185]) that: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

36 While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact - if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211. 37 The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was (Eastman), or subsequently became (George), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George. In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case.

(ii) Procedural Fairness 38 It is unnecessary to refer separately here to the applicable principles other than to note, as I do below, the applicant's primary reliance on the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88.

CONSIDERATION 39 As I earlier indicated, the two grounds of this application are that, first, the Tribunal's decision was affected by reasonably apprehended bias and, secondly, denial of procedural fairness. As to the latter ground, as formulated in the application it was that: 4.2.1 The issue of whether the applicant had committed a criminal offence on 1 May 2008 was credible, relevant and significant to the decision on whether or not to affirm the refusal of the visa. As such, the Tribunal was required, as a matter of procedural fairness, to give the applicant an opportunity to respond to information regarding the allegation that he had committed an offence on 1 May 2008. 4.2.3 During the hearing of the application before the Tribunal on 28 November 2008 the Tribunal repeatedly denied the applicant an opportunity to provide a detailed or adequate response to the allegation that he had committed an offence on 1 May 2008. 40 During the course of the hearing there was some movement in, and a coming together of, the grounds. This will become apparent in what follows.

(a) Apprehended Bias 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman, was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly, despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly, it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally, it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 42 These circumstances, it is said, were sufficient to raise a reasonable apprehension in the mind of a fair-minded lay observer that, having formed a view in May 2008 that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence, the Tribunal might not, seven months later, bring an impartial mind to the issue of whether or not the applicant was likely to re-offend. 43 In light of what was said by Gallop J in Eastman, the applicant contends as well that, having made a decision to issue a warrant which required him to form a view of the applicant's recent charge, the Tribunal member ought to have disqualified himself from hearing the subsequent application which required him to form a view of the applicant's conduct and whether he was likely to re-offend. 44 For my own part, I again emphasise that the test to be applied does not require analysis of the likely or actual thought processes of the Tribunal. There is no evidence as to whether, if at all prior to his decision the member recalled issuing the warrant involving Mr Islam. Such view as the lay observer might take on that matter, provided it is reasonable, may well be mistaken. That is not to the point. 45 The Tribunal did not disclose at the hearing its participation in the issue of the warrant. The member may well have had no memory of that. The member, equally, may have known or have become aware of that participation but have considered he could or should neutralise the significance of it by determining the matter without taking into account "in any way" the 1 May 2008 allegations. Alternatively and despite the significance to be attributed to "general conduct" at the stage of exercising the s 501(1) discretion (which could include "unresolved charges pending a hearing": Direction No 21, the member may have been of the view that account ought not be taken of the 1 May charge in any event as the applicant had not been convicted as charged. I express no view on any of these speculations other than to say that they would be contingencies which a fair minded lay observer could reasonably canvas in forming his or her judgment of the matter. 46 Before turning to the Tribunal's reasons for decision, I would note that Mr Islam's two most recent convictions prior to the 1 May 2008 charge involved assaults/threats and the use of knives and, in the latter of the two, robbery. These offences notwithstanding, the then Minister, as I earlier noted, decided in November 2007 in the exercise of his discretion not to refuse to grant the applicant a bridging visa albeit a formal warning was given that "any further conduct bringing him within the provisions of section 501 will lead to the question of … refusing any future visa applications". When the issue was again agitated by the Minister on 25 June 2008 as to whether the applicant's visa application should be refused under s 501(1) the only subsequent conduct notified to Mr Islam for comment was the 1 May 2008 alleged offence. 47 When the delegate's decision was made on 10 October 2008 to refuse the applicant's visa application, the pending charges were accepted to be one of the matters of which account could be taken when considering the likelihood of his reoffending. 48 At the Tribunal hearing a different view was put by the Minister as to the significance of the charges. They were not to be given any weight. Nonetheless, the risk of recidivism remained a critical issue before the Tribunal and the Minister submitted, and the Tribunal accepted, that (i) "in a situation where threats of violence are made against innocent members of the public [as with his two prior convictions], any risk of recidivism must be considered unacceptable"; and (ii) "Mr Islam has made repeated claims that he is repentant and will reform, but has failed to do so." 49 On both of these issues the reasonable and fair minded lay observer could well consider he or she was being asked to, but was unable to, accept that the Tribunal could satisfactorily bifurcate the information it might possess on both those matters, and that it could reach its conclusion on each by reference, for example, to the three bail breaches while not taking into account in any way the view it had of the significance and character of the 1 May 2008 charge derived from the listening device hearing. While the significance of "subconscious effect" is to be treated with circumspection in procedural fairness cases given the relevant inquiry in such cases: cf Applicant VEAL at [19]; the issues of appearance and judgment in apprehended bias cases are, in my view, differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial) observer. 50 If the lay observer might experience some difficulty or reserve in accepting the potential efficacy of a self imposed "Chinese wall" in containing a prior formed opinion, that would well be compounded by the somewhat Delphic character of the Tribunal member's concluding comment on the November 2007 warning from the Minister about "any further conduct bringing him within the provisions of s 501": Unfortunately this warning appears to have not been taken seriously. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity. 52 As Eastman illustrates, the potential is there for apparent compromise of an official's decision making whenever a close relationship or association exists between the subject matter of an administrative or judicial decision to be taken by that official, and adverse information obtained (or an adverse opinion formed) relating to that subject matter in the course of, or as a result of, a separate earlier decision taken by the same official for other purposes. Where it might reasonably be said that the having of (or having had) that information or opinion by virtue of a prior official decision might compromise the proper and impartial taking of the later decision, the same official ought not participate in the later decision. To do so would involve the member in the discharge, in the circumstances, of incompatible functions. Such was the case here. 53 It was inappropriate for the Tribunal member, having determined to authorise the issue of the warrant in relation to Mr Islam, to have then made the s 501(1) refusal determination given the association in subject matter of the two determinations - or at least to have done so without the informed waiver of objection by Mr Islam to his so doing. Absent such waiver, I am satisfied that the "double might" test of the fair minded lay observer would inevitably be satisfied. 54 I have emphasised the complex of competing possible views, that the conduct of the Tribunal member, the course of the hearing and the Tribunal's decision, could reasonably engender in the lay observer. In my view, despite the Tribunal's and, for that matter, the Minister's disclaimers, such an observer could reasonably entertain an apprehension that the Tribunal's decision might have suffered from prejudgment. The closely associated decision-making that occurred here ought not be countenanced. The Tribunal should have procedures to guard against such a possibility. 55 I am in consequence satisfied that the case of apparent bias has been made out and that the Tribunal's decision should be set aside.

(b) Procedural Fairness 56 I have not concluded - and the Tribunal's reasons are sufficiently inconclusive for me to be able properly to determine - that the member did in fact take into account the 1 May 2008 offence in reaching his conclusion. In this state of affairs, in my view, the procedural fairness case practically falls away. 57 In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it. 58 Whatever may have been the Tribunal's obligation to Mr Islam in relation to the charge prior to the second of the above comments, the charge thereafter was not itself an issue potentially prejudicial to Mr Islam on the review. He could suffer no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [38]; "[he] lost no opportunity to advance his case": ibid. The marginalisation of the charge did not in any way impede Mr Islam from advancing positive reasons for why the Tribunal's discretion should be exercised in his favour. He was not denied procedural fairness. 59 Unlike in Applicant VEAL both the Tribunal and the applicant were aware of the charge and of its being disregarded. As Mr Islam indicated when told it would be so treated - "I appreciate it" - it was to his advantage. What Mr Islam did not know and was not told, was of the member's participation in the issue of the warrant. The non-disclosure of that participation did not of itself raise a procedural fairness issue. It did set the scene, though, for the applicant's apprehended bias challenge.

CONCLUSION 60 I will order that:

1. The application be allowed.
2. The decision of the Tribunal be set aside.
3. The matter be remitted to the Tribunal to be determined according to law.
4. The first respondent pay the applicant's costs of the application. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Applicant: VISA Lawyers Australia Pty Ltd

Counsel for the First Respondent: Mr P Grey with Mr P Knowles

Counsel for the Second Respondent: The Second Respondent did not appear.