The Appeal
19 It is convenient to begin with a short summary of the primary judge's reasons with respect to his conclusion of apprehended bias.
20 The primary judge's general approach to each of the grounds of judicial review was to identify the ground, then to identify the competing submissions of the parties, and then to express his conclusions with respect to the merits of the ground. I will address the four paragraphs in the primary judge's reasons which contain his reasons for concluding that the allegation of apprehended bias was made out.
21 The primary judge first makes the point that although he ultimately finds that the respondents have established apprehended bias, he did not consider the second Authority's reliance on the DFAT Report to be "decisive". The primary judge said that, on the contrary, it would have been unreasonable for the second Authority not to have taken the DFAT Report into account (PJ at [115]).
22 There are then three key paragraphs in his Honour's reasons (PJ at [116], [117] and [118]).
23 His Honour said that there were three factors "bearing on" the apprehension of bias. He identified those factors as follows:
(1) the speed with which the second Authority proceeded with the second review following the remittal from the Federal Circuit Court;
(2) the opaque notification provided to the respondents by the second Authority following remittal, which said very little apart from notifying the respondents that they were in the second review engaged "in a race against time", the parameters of which were not revealed; and
(3) the absence of anything communicated from the second Authority to the respondents that they would have an opportunity to put anything to the second Authority bearing upon the reason for the remittal.
(PJ at [116].)
24 The primary judge then said that he considered that these factors would create in the mind of a fair-minded observer the apprehension that the second Authority was engaged upon an unwelcome process forced by the Federal Circuit Court and that it intended to complete that process in the shortest possible time. In addition, a fair-minded observer would apprehend that the second Authority was seeking to avoid a situation where the respondents provided further submissions to it, which would further complicate the review following remittal (PJ at [117]).
25 His Honour concluded that "these factors" would create in the mind of a fair-minded observer an apprehension that the second Authority on remittal might not bring an impartial mind to bear on the review (PJ at [118]). I infer that his Honour's reference to "these factors" is a reference to the factors identified in the immediately preceding paragraph of his reasons, that is, at [117] (see [24] above).
26 The Minister submitted that the primary judge had erred in holding that a case of apprehended bias on the part of the second Authority had been made out. He made three principal submissions. First, the Minister submitted that the primary judge erred in applying the test of apprehended bias in that the three matters he identified in paragraph 116 of his reasons did not lead to the conclusions he expressed in paragraph 117. Secondly, the Minister submitted that the primary judge failed to recognise and apply the legal requirement that, in the case of apprehended bias, clear proof is required and that this is important because clear proof did not exist in this case. Thirdly, the Minister submitted that the primary judge, in applying the test of apprehended bias, failed to recognise and apply the principle that the fair-minded observer is to be attributed with knowledge and understanding of the statutory context or scheme within which the decision is made, and it is to be assumed that the fair-minded observer takes those matters into account.
27 In addition, the Minister submitted that it was irrelevant to an assessment of whether apprehended bias arises to consider the fact that the second Authority had the power to negate what might otherwise be an apprehension of bias by inviting comments from those affected by its decision.
28 One of the leading authorities in this country dealing with apprehended bias is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. Gleeson CJ, McHugh, Gummow and Hayne JJ described (at [6]) the governing principle of apprehended bias as being "… if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (citation omitted).
29 Their Honours went on to say (at [8]) that the application of the principle of apprehended bias requires two steps:
… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…
30 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74, Deane J said that the area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of cases. The category which is relevant in this case is the second which covers disqualification by conduct, including published statements and consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to an apprehension of bias.
31 The principles relevant to apprehended bias in a case involving the Act were discussed by the Full Court of this Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30. In that case, an allegation of apprehended bias was made against a judge of the Federal Circuit Court. The evidence relied upon was comparative statistical analysis of that judge's previous decisions in migration matters. The Full Court identified the relevant principles as follows:
35 … [T]he test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).
36 Other relevant principles are:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).
Of particular relevance for present purposes is the reference to an allegation of bias being "distinctly made and clearly proved". This was the phrase used by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69], although that was in the context of an allegation of actual bias. I was not referred to a case where a court has said that an allegation of apprehended bias must be distinctly made and clearly proved.
32 The High Court considered the application of the principles of apprehended bias in a case involving a decision made under Pt 7AA of the Act in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17). In that case, a delegate of the Minister provided to the Authority information which was extraneous and prejudicial to a referred applicant and the question was whether an apprehension of bias on the part of the Authority arose in circumstances in which the Authority, without requesting new information or interviewing the referred applicant, affirmed the decision under review.
33 Chief Justice Kiefel and Gageler J said (at [17]):
What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. That adaptation to the scheme of Pt 7AA of the standard formulation of the bias rule has a number of elements which warrant further exposition.
(Citation omitted.)
Justices Nettle and Gordon said (at [58]-[59]):
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.
(Citations omitted.)
Having made the point that a fair-minded observer knows the key aspects of the statutory scheme, their Honours then identified those aspects as follows (at [94]):
… 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.
(Citations omitted.)
34 Their Honours also make the point that, depending on the circumstances, a way of counteracting an apprehension of bias may be to invite an applicant to comment on information under s 473DC(3) (at [100]-[102]). Subject to one matter, I did not understand there to be any dispute between the parties as to the correct legal principles. The test is as stated by Kiefel CJ and Gageler J in CNY17 (at [17]).
35 The primary judge stated the test correctly (PJ at [98] and [102]) although arguably, his conclusion may express the test in more demanding terms than is correct (PJ at [118]). However, neither party sought to make anything of this. The dispute between the parties concerned the application of the test to the facts.
36 The one qualification to what I have said in the previous paragraph is that there was a dispute between the parties about whether there is a requirement in the case of apprehended bias, as distinct from actual bias, that the allegation be distinctly made and clearly proved. The Minister submits that there is, whereas the respondents submit that this requirement is limited to cases of actual bias. It seems to me that an allegation of bias, whether actual or apprehended, is serious and must be distinctly made. The respondents clearly made an allegation of apprehended bias in this case. In terms of clear proof, the issue is what is the matter to be proved. A deliberate and knowing departure from the law is a very serious allegation and must be clearly proved. Apprehended bias involves a different test which is sometimes referred to as the "double might" test. Nevertheless, it seems to me that the Court's willingness to attribute the necessary apprehension to the fair-minded and properly informed observer may well be influenced by the nature and seriousness of the conduct and the inferences to be drawn from it that it is said might give rise to the necessary apprehension. In my opinion, the seriousness of the possible apprehension identified by the primary judge, and attributed to the fair-minded observer (PJ at [117]) based on the conduct identified by the primary judge (PJ at [116]) and leading to the ultimate conclusion of apprehended bias (PJ at [118]), is relevant to the assessment of whether there is a case of apprehended bias. In other words, the Court will consider carefully whether the conduct in a case like the present might give rise in the mind of the fair-minded observer to an apprehension that the second Authority was engaged in a process not welcome to it and one that it would complete in the shortest possible time, and further, that the second Authority was seeking to avoid a situation where the respondents provided further submissions to it, which would further complicate the review following remittal.
37 I turn now to examine the three matters constituting the conduct of the second Authority (see [23] above) which formed the basis of the primary judge's conclusions about the effect of those matters on the mind of the fair-minded observer (see [24] above) which led to the ultimate conclusion of the primary judge that an apprehension of bias arose (see [25] above). My conclusion is that when the three matters are considered in the statutory context in which the second Authority's decision was made, and in the context of the procedural history of the respondents' application, they do not lead to the primary judge's conclusions about the fair-minded observer's state of mind and, it follows, the primary judge erred in holding that an apprehension of bias arose.
38 The first of the three matters is the speed with which the second Authority proceeded with the review following remittal from the Federal Circuit Court. The statutory provisions which are relevant to an assessment of this matter, and indeed of the second and third matters, are as follows. First, s 473FA(1) of the Act provides that the Authority in carrying out its functions under the Act is to pursue the objective of "providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3" of Pt 7AA of the Act. Division 3 of Pt 7AA deals with the conduct of a review. Secondly, s 473DB(1) provides that, subject to Pt 7AA, the Authority is to review a fast track reviewable decision by considering the review material provided to it, without accepting or requesting new information and without interviewing the referred applicant. Also important is s 473DB(2) which provides as follows:
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
39 Thirdly, the following limits on the powers of the Authority to get new information (s 473DC) and to consider new information (s 473DD) are relevant.
40 Section 473DC(1) provides a definition of "new information". It is information that was not before the Minister when the Minister made the decision under s 65 of the Act and that the Authority considers may be relevant. The subsection provides that the Authority may get new information, however, by reason of s 473DC(2), it is clear that it does not have a duty to do so. One way in which the Authority may get new information is to invite a person, orally or in writing, to give new information in writing or at an interview (s 473DC(3)). The power in s 473DC(3) may involve two steps, being a consideration of whether to exercise the power and the exercise of the power. The authorities are clear that both steps are conditioned by a requirement that the step is carried out in a way that meets the standard of legal reasonableness. In this case, the second Authority took the first step of considering the exercise of the power, but declined to take the second step of exercising the power.
41 Section 473DD sets out the circumstances in which the Authority may consider new information for the purposes of making a decision in relation to a fast track reviewable decision. The first requirement is that the Authority must be satisfied that there are exceptional circumstances to justify considering the new information. Secondly, the referred applicant must also satisfy the Authority of one of the matters in s 473DD(b) which provides as follows:
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
42 In addition to these matters of statutory context, it is also relevant to take into account the long procedural history of the respondents' application. The late claims were made on 30 October 2017 and the delegate rejected the late claims on 10 January 2018. At no time between that date and the second Authority's decision did the respondents seek to put forward any evidence from the second respondent of the first respondent's involvement in the LTTE as alleged in the late claims.
43 It is true, as the respondents pointed out, that 12 working days (or 18 days) after acknowledging the remitter, the second Authority purported to complete the fast track review without hearing from the second respondent. It is also true, as the respondents pointed out, that the first Authority acknowledged the referral to it on 16 January 2018 and that almost six weeks later, the first Authority notified the respondents of its decision to affirm the delegate's decision. However, when the statutory and procedural context is considered, those matters are insufficient to lead to the conclusions drawn by the primary judge as identified above (at [24]).
44 The second of the three matters is what the primary judge referred to as the opaque notification provided to the respondents by the second Authority following remittal, which said very little apart from notifying the respondents that they were in the second review engaged "in a race against time", the parameters of which were not revealed. As to this matter, the following should be noted. First, there is nothing in Pt 7AA of the Act which provides that the Authority must give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time. As I have already said, the Authority is authorised to make a decision at any time after a decision has been referred to it (s 473DB(2)). The notice given by the second Authority did advise the respondents to "act quickly in your dealings with us, as a decision may be made at any time" and it may be noted that in the notice given by the first Authority, the first Authority advised the respondents to "act quickly in your dealings with us". It is true that the second Authority did not state that the respondents had the opportunity of providing submissions as the first Authority had done in accordance with the Practice Direction issued by the President under s 473FB of the Act, but it has to be borne in mind that the matter had been through a process by the time the second Authority came to consider it. Further, any deficiency in the notice is not sufficient in itself to lead to a conclusion of apprehended bias.
45 The third of the three matters is that there was no communication from the second Authority to the respondents that they would have an opportunity to put anything to the second Authority bearing upon the reason for the remittal. The reason for the remittal was that the first Authority had unreasonably failed to consider the exercise of the discretion to invite the second respondent to interview pursuant to s 473DC(3) of the Act. The second Authority was not bound to extend such an invitation (see s 473DC(2)) and the way in which it proceeded was expressly contemplated by the Act. Having regard to the statutory and procedural context, I cannot see how this matter leads to a conclusion of apprehended bias.
46 In my opinion, the three matters considered cumulatively do not lead to a conclusion of apprehended bias. I would not attribute as a possibility to the fair-minded observer who was aware of the statutory context and procedural history of the application, a reasonable apprehension that the second Authority might not bring a fair, impartial and independent mind to the determination of the matter on its merits by reason of the three matters. With respect, it is particularly difficult to see how this can be done by the process of reasoning adopted by the primary judge. In other words, I do not consider the three matters, individually or cumulatively, might give rise in the mind of the fair-minded observer of a reasonable apprehension that the second Authority saw itself as engaged in an "unwelcome process, forced by th[e] Court" (meaning, presumably, a process that it did not want to carry out) and that it wished to do so in the shortest possible time and that it sought to avoid the respondents providing further submissions which would further complicate the review material (and presumably, engaged in the conduct it did in order to achieve this purpose).
47 I uphold the Minister's appeal.