(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.