What happened
The first respondent, a citizen of Iran, arrived in Australia on 22 October 2012 as an unauthorised maritime arrival. He was permitted to apply for a temporary protection visa after the Minister exercised power under s 46A(2) of the Migration Act 1958 (Cth). In his application lodged on 30 June 2015 he claimed a fear of serious harm from the Basij and Iranian authorities arising from his political opinion and anti-Islam views. He asserted that he had been an ordinary member of the Basij but had confronted his commander about the militia's treatment of civilians, after which he was threatened with death. His mother subsequently moved to Qeshm Island.
A departmental delegate interviewed the first respondent and on 3 December 2015 refused the visa. The delegate found the claims lacked credibility and did not accept that the first respondent had been a Basij member, had insulted Islam, or faced any ongoing risk. No issue was raised concerning the first respondent's character or any criminal conduct in Australia.
On 4 December 2015 the delegate's decision was referred to the Immigration Assessment Authority (IAA) under s 473CA as a fast track reviewable decision. Pursuant to s 473CB(1) the Secretary gave the IAA the review material. That material included a departmental email dated 30 July 2015 which stated that the first respondent had been charged in Melbourne on 17 July 2015 with assaulting a female in indecent circumstances while aware that she was not consenting. The email noted a court date of 11 September 2015 at the Melbourne Magistrates' Court. The charge was ultimately dismissed after the IAA's decision.
On 5 January 2016 the IAA affirmed the delegate's decision under s 473CC(2)(a). The IAA accepted that the first respondent had been an ordinary member of the Basij and had made derogatory comments to his commander. It accepted that the commander and other members might continue to bear a grudge. It also accepted that the first respondent's mother had moved to Qeshm Island after her son's difficulties with the Basij. However, the IAA found that the delay in her relocation indicated she had not moved because of those problems. It concluded that the first respondent was of no ongoing interest to the Basij or Iranian authorities and did not face a real chance of persecution or significant harm.
The first respondent commenced judicial review proceedings in the Federal Circuit Court of Australia (FCCA). After several amendments, his grounds included a claim that the IAA's decision was affected by apprehended bias arising from the provision of both legal advice and the Departmental communications concerning the indecent assault charge. The primary judge rejected most grounds but upheld the apprehended bias contention in respect of the Departmental communications. Her Honour found that the communications were irrelevant and highly prejudicial, could not have been considered relevant by the Secretary, and had been provided without statutory warrant. Even though the natural justice hearing rule was excluded by s 473DA, apprehended bias was not excluded. Applying the fourth category identified by Deane J in Webb v The Queen (extraneous prejudicial information), the primary judge set aside the IAA decision and remitted the matter.
The Minister appealed to the Full Court on two grounds: first, that the primary judge had denied procedural fairness by deciding the Secretary lacked power under s 473CB(1)(c) when that issue had not been squarely raised; secondly, that the primary judge erred in finding apprehended bias merely from the fact that the Departmental communications had been provided. The Full Court (Dowsett, Griffiths and Charlesworth JJ) dismissed the appeal. Leave to adduce fresh evidence concerning the legal qualifications of the IAA reviewer was refused. The objection to competency and the first respondent's notice of contention were also dismissed. The Minister was ordered to pay the first respondent's costs.
Why the court decided this way
The Full Court held that the primary judge had not denied the Minister procedural fairness. Although the final judicial review application did not contain an express claim that the Secretary lacked power to include the Departmental communications (as opposed to the legal advice), particular (d) to ground 2 asserted that provision of review material in excess of power vitiated the IAA decision. More importantly, the Minister's own written submissions to the FCCA had invited the court to infer that the communications formed part of the review material lawfully provided under s 473CB(1)(c). In those circumstances the primary judge was entitled to decide whether that inference should be drawn. No procedural unfairness arose because the Minister had joined issue on the very point.
On the substantive ground, the Court concluded that the IAA's decision was affected by apprehended bias. Griffiths J (with whom Dowsett and Charlesworth JJ relevantly agreed) began by summarising the well-settled principles from Ebner, Livesey, Jia Legeng, Isbester and ALA15. Two steps are required: identification of the matter that might lead the decision-maker to decide other than on the merits, and articulation of the logical connection between that matter and the feared deviation. The test is applied by reference to the statutory context. The hypothetical fair-minded lay observer is attributed with knowledge of the relevant statutory framework, including the limited nature of Pt 7AA review, the obligation under s 473DB(1) to consider the review material, and the objective stated in s 473FA(1) that the IAA provide a mechanism of limited review that is free of bias.
The Court emphasised that the test concerns the appearance of fairness, not the correctness of the outcome or any actual subconscious influence. In the IAA context, the Secretary is obliged under s 473CB(1)(c) to give any other material in his or her possession or control that is considered (at the time of referral) to be relevant to the review. The IAA must consider that material. The Departmental communications were, on their face, irrelevant to whether the first respondent met the criteria for a temporary protection visa. No character or criminal history issue had been raised before the delegate or the IAA. The communications were highly prejudicial, describing a serious sexual offence.
The Court distinguished O'Sullivan v Medical Tribunal of New South Wales. In that case a judicial member of the Tribunal had expressly rejected tender of prejudicial material and stated that it would be put out of mind. The Tribunal was presided over by a District Court judge who could direct lay members. None of those features existed here. The IAA reviewer was simply a person engaged under the Public Service Act 1999 (Cth). The APS Values and Code of Conduct, set out at length by Griffiths J at [71], are expressed at a high level of generality and do not equate to the safeguards present in O'Sullivan. The IAA's statement of reasons was entirely silent on the communications. A fair-minded observer would know that the IAA was obliged by s 473EA and s 25D of the Acts Interpretation Act 1901 (Cth) to set out its findings on material questions of fact and the evidence on which they were based. The absence of any reference did not reassure the observer that the material had been disregarded; given its prejudicial character, the observer might apprehend subconscious influence.
Crowley v Holmes was also distinguished. That case concerned an adversarial hearing before a professional services review committee where the practitioner could be heard. There was no equivalent to the mandatory provision and consideration of review material under ss 473CB and 473DB. Here the review is conducted on the papers with severely limited rights of participation.
The Court rejected the Minister's reliance on the presumption of regularity. The face of the material itself demonstrated that no reasonable person performing the Secretary's duty could have considered the communications relevant. The presumption was therefore rebutted. Even if the communications had been lawfully provided, that would not prevent a finding of apprehended bias where the IAA had not disavowed them. Dowsett J added that the communication of the information as material considered relevant by the Secretary took the case beyond mere knowledge of prejudicial facts and into the fourth Webb category.
Charlesworth J emphasised that the finding of bias did not depend on whether the Secretary had erred; even if the Secretary subjectively considered the material relevant, its objectively prejudicial and irrelevant character remained. The Court left open whether the IAA had power to disclose the communications and invite submissions, noting that no such disclosure had occurred. The appeal was therefore dismissed.
Before and after state of the law
Prior to this decision, the application of apprehended bias principles to the IAA was untested at Full Court level. This was the first proceeding before a Full Court concerning Pt 7AA, inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) with effect from 18 April 2015. The Explanatory Memorandum emphasised that the IAA would pursue a limited review that is efficient, quick and free of bias. Section 473FA(1) expressly states that objective. Section 473DA provides that Div 3, together with ss 473GA and 473GB, is an exhaustive statement of the natural justice hearing rule. The Court noted that this provision focuses on the fair hearing limb and does not address the bias limb.
The decision confirms that the common law rule against apprehended bias continues to apply to IAA reviews. It applies the Ebner two-step test and the four categories from Webb v The Queen (including extraneous information) in the specific statutory context of mandatory provision of review material. The judgment makes clear that the presumption of regularity will not save provision of material that is on its face irrelevant and prejudicial. Silence in the IAA's s 473EA statement of reasons will not rebut an apprehension of bias where the reviewer has been given such material as relevant.
After the decision, the law is settled that IAA reviewers must be alert to the risk that receipt of extraneous prejudicial material presented as review material can create an appearance of bias if not expressly disavowed. The anomaly noted at [40] and [96] remains: unless the Secretary re-exercises the s 473CB duty on remitter, the same material may be provided again. The judgment leaves open several construction questions concerning the interaction between the bias rule and the limited powers to obtain or disclose new information under ss 473DC–473DE. It also leaves open whether s 473FA's reference to bias encompasses only actual bias (per Dowsett J at [2]).
Key passages with plain-English translation
At [4] Dowsett J stated: "in the present case, there is rather more than knowledge of irrelevant and prejudicial information. Such information had been communicated to the IAA as material considered, by the Secretary, to be relevant to the review. In those circumstances the fair-minded observer might well apprehend bias where the decision-maker has not expressly identified such information as irrelevant, and has not said that he or she has excluded it from consideration in the decision-making process." (Plain English: It is not enough that the reviewer simply knows about damaging but irrelevant facts. The problem is that the department sent the facts as officially relevant material that the reviewer had to read. Unless the reviewer clearly says "I have ignored this", a reasonable outsider could think the reviewer might have been swayed.)
At [62] Griffiths J quoted Allsop CJ from SZRUI and added: "The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome)." (Plain English: The court does not ask whether the IAA reached the right answer. It asks whether the process looked fair. Public confidence in government decision-making depends on that appearance.)
At [75] Griffiths J explained: "the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the IAA may have been affected by them albeit subconsciously. It is this consideration which supplies the necessary connection between the nature of the Departmental communications and the fear that the IAA might not decide the referral on its merits, as required by Ebner." (Plain English: Even if the reviewer did not consciously rely on the damaging email, a reasonable person could worry that it still coloured the decision at some unconscious level. That worry provides the logical link the law requires before finding apparent bias.)
At [78] the Court observed that "when the matter was referred to the IAA, the Secretary must have considered that the Departmental communications were relevant to the review... It was, of course, open to the IAA in arriving at its own decision on the referral to take a different view from the Secretary as to the relevance of the material, but its statement of reasons is entirely silent on that matter." (Plain English: The law required the IAA to treat the email as relevant because the Secretary had sent it that way. The IAA could have decided it was irrelevant, but it never said so in writing. That silence is damaging.)
What fact patterns trigger this precedent
This precedent is triggered when three cumulative elements are present in an IAA review under Pt 7AA. First, the Secretary includes in the review material under s 473CB(1)(c) information that is objectively irrelevant to the criteria for protection visas and is highly prejudicial to the referred applicant. Secondly, that information is communicated as material the Secretary considered relevant at the time of referral, thereby engaging the IAA's obligation under s 473DB(1) to consider it. Thirdly, the IAA's statement of reasons under s 473EA is silent on the relevance or irrelevance of the material and contains no express statement that it has been disregarded.
The precedent applies even though the rules of evidence do not bind the IAA (s 473FA(2)) and even though the natural justice hearing rule is excluded by s 473DA(1). It is not necessary to prove that the IAA in fact relied on the material or that the outcome would have been different. Mere possession of the material is insufficient; the combination of its prejudicial character, its presentation as relevant review material, and the absence of any disavowal supplies the Ebner logical connection. The precedent is not engaged where the IAA expressly states that it has put the material out of its mind, or where the material is capable of rational connection to an issue the IAA must decide. It is also distinguishable where the decision-maker is a judicial officer or a multi-member tribunal with explicit statutory safeguards of the kind present in O'Sullivan.
How later courts have treated it
The judgment itself treats earlier authorities carefully. It applies the Ebner two-step test and the contextual approach from Isbester at [65] and [23]. It cites Jia Legeng for the requirement that allegations of bias be distinctly made and clearly proved. It follows VEAL in cautioning against over-emphasis on subconscious effect in the fair hearing context while accepting its relevance to apprehended bias.
The Court distinguished rather than followed O'Sullivan and Crowley, emphasising their different statutory settings. In O'Sullivan the presence of a judicial member who expressly rejected the material and directed lay members was decisive; the IAA lacks any such safeguard. In Crowley the adversarial nature of the hearing and the absence of mandatory review material provisions distinguished it from the IAA's inquisitorial, paper-based process. The judgment therefore narrows the circumstances in which prior tribunal bias cases can be applied to the IAA.
The decision reinforces ALA15 and the Full Court's earlier statements that the fair-minded observer is attributed with knowledge of the entire statutory framework, including the limited review objective in s 473BA and s 473FA(1). It does not overrule any prior authority but confines the operation of the presumption of regularity in the specific context of s 473CB(1)(c) where the material's irrelevance appears on its face.
Still-open questions
The judgment leaves several important questions unresolved. First, whether the reference to bias in s 473FA(1) is confined to actual bias or extends to apprehended bias (Dowsett J at [2] expressed the view that it is at least arguable the section refers only to actual bias). Secondly, the precise scope of s 473DA(1): while the Court accepted that the provision does not exclude the bias rule, the full interaction between the exhaustive statement of the hearing rule and the bias rule in the IAA context remains unexplored.
Thirdly, the circumstances in which the IAA may disclose prejudicial review material to the referred applicant and invite submissions without that disclosure constituting "new information" under ss 473DC and 473DD. The Court noted the Minister's argument that s 473DC is the only source of power but found it unnecessary to decide the point because no disclosure had occurred. Charlesworth J observed at [101] that submissions about apprehended bias would not constitute new information bearing on the substantive merits.
Fourthly, the precise content of the Secretary's duty under s 473CB(1)(c) and whether the presumption of regularity can ever apply to that provision. The Court left open the broader question of the presumption's breadth. Finally, the practical consequence of the anomaly that, absent re-exercise by the Secretary of the s 473CB duty on remitter, the same prejudicial material may be provided again, potentially recreating the bias problem. These issues, described by Griffiths J at [94] as raising important questions of statutory construction, await a case in which they properly arise with the benefit of full argument.