First respondent's principal contention
88 As already noted, the first respondent's principal contention in support of the judgment of the Federal Circuit Court was that the Tribunal's decision was affected by jurisdictional error in the form of apprehended bias.
89 The relevant principles relating to apprehended bias in an administrative decision-making context are relatively well settled. They are set out in numerous cases, including CNY17 at [17]-[18] (Kiefel CJ and Gageler J); [69]-[70] (Nettle and Gordon JJ); and [131]-[132] (Edelman J); FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [32]; Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 at [61] and following; and ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36].
90 The test for apprehended bias in administrative decision-making is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that the decision-maker is required to decide: CNY17 at [17] (Kiefel CJ and Gageler J); [56] (Nettle and Gordon JJ); and [132] (Edelman J). At least the following two steps are involved in a case involving a claim of apprehended bias: first, it is necessary to identify "what it is that might lead a decision-maker to decide a case other than on its legal and factual merits": CNY17 at [57] citing Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [21]. One class of thing that may be identified as giving rise to partiality on a decision-maker's part is the possession of extraneous information. As Deane J said in Webb at 74 in relation to extraneous information, there is a category of cases where "knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias". In this case, as already noted, the first respondent's contention is that the Tribunal's knowledge of the irrelevant and prejudicial information in the Job Details Report gave rise to an apprehension of bias. Secondly, there must be an articulation of the logical connection between the identified thing and the feared deviation from the course of deciding a case on its merits: CNY17 at [57], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]. In this case, as already noted, the first respondent argued that the fair-minded lay observer might have apprehended that the "objectively irrelevant prejudicial information" given by the Secretary to the Tribunal in the Job Details Report might have unconsciously encouraged the Tribunal to form an adverse view of the first respondent's character and credit.
91 In the context of apprehended bias, the hypothetical fair-minded lay observer is attributed with the appropriate knowledge to be able to make a reasonably informed assessment of the likelihood of apprehended bias. Such knowledge includes knowledge of the relevant legal framework - in this case knowledge of the procedures governing the Tribunal's decision-making under Part 7 of the Migration Act. The hypothetical observer is also attributed with knowledge of the identity of the decision-maker, the nature of the decision and issues in question, and of the relevant facts and circumstances leading to the decision, including, of course, the impugned conduct: see, for example, CNY17 at [17] (Kiefel CJ and Gageler J); [58] -[59] (Nettle and Gordon JJ); Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ); Re Refugee Review Tribunal v Ex parte H [2001] HCA 28; 75 ALJR 982 at [27]-[28]. It has been authoritatively stated that the fair-minded lay observer has "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]": Webb at 73, as quoted in CNY17 at [58]. In the latter case, Nettle and Gordon JJ added, at [59], "[w]here, however, … the statutory scheme is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme".
92 As the courts have repeatedly noted, the apprehended bias rule is concerned with protecting the public appearance of independence and impartiality, and does not require a finding that the irrelevant and prejudicial information in fact affected the decision made by the decision-maker, here the Tribunal: see, for example, CNY17 at [18] (Kiefel CJ and Gageler J); [70] (Nettle and Gordon JJ); and [131] (Edelman J); and AMA16 at [62] (Griffiths J, with whom Dowsett and Charlesworth JJ relevantly agreed).
93 The principles relating to apprehended bias have been recently applied in relation to administrative decision-making in the review of decisions under the Migration Act, including MZAOL, CNY17 and, since this case was argued, FSG17.
94 Besides the ground already mentioned, the appellant in MZAOL contended that the Tribunal's decision with regard to her was affected by apprehended bias, relying on the fact that not only had the Tribunal failed to disclose an invalid notification under s 438 of the Migration Act, but also that the notification concerned prejudicial information adverse to her character and credit. On account of the way the appellant put her case, the Full Court's analysis in MZAOL with respect to apprehended bias relied heavily on its reasoning with respect to the procedural fairness ground. The starting point for the Court's analysis in this case was the fact that, in the regular administration of the Migration Act, the Tribunal would have understood that, unless it affirmatively exercised its discretion under s 438(3) to do so, it could not have regard to the notified information and had in fact determined that such an exercise of discretion was unwarranted. The Full Court reasoned, in substance, that since it should be inferred that the Tribunal had consciously determined not to have regard to that information, there was no basis upon which it might be said that the information might have affected the Tribunal's decision-making. The Court held, at [88], that:
The same inferences, made for the same reasons, ought to be attributed to the fair-minded and appropriately informed reasonable observer. … If, as to be inferred here, the Tribunal came to the view that there was no reasonable basis or good reason for having regard to the impugned information despite its obvious relevance and the relevance attributed to it by the Secretary, there is no basis for thinking that the Tribunal might have been influenced by the information, even subconsciously.
The Court concluded that the appellant had failed to make out a case of apprehended bias.
95 There may be difficulties with the analysis in MZAOL if it is understood to mean that where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, it necessarily follows that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information.
96 Whether it should be inferred that the Tribunal had regard to notified information for the purposes of procedural fairness is a question to be answered from the perspective of the reviewing court. As already noted, a claim of apprehended bias is to be considered from the different perspective of the fair-minded lay observer. In this respect, in Islam v Minister for Immigration and Citizenship [2009] FCA 1526, Finn J said, at [49]:
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 [of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88] 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.
97 On this basis, Finn J went on to say that the lay observer, by contrast to the judicial observer, "might experience some difficulty or reserve in accepting the potential efficacy of a self-imposed Chinese wall" (at [50]). In the same way, the lay observer might find it difficult to accept that, there is no possibility that the Tribunal might be subconsciously influenced by prejudicial information after it had read that information for the purpose of considering whether to exercise the discretion under s 438(3) to have regard to that information for the purpose of merits review.
98 Further, the materiality inquiry discussed above asks whether it should be inferred from the Tribunal's reasons that the Tribunal did, in fact, have regard to the information. With respect to apprehended bias, the question is whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues to be decided. For a claim of apprehended bias to succeed, it is, of course, not for the fair-minded lay observer to be satisfied that the Tribunal did, in fact, have a partial mind because its deliberation was in fact subconsciously affected by the relevantly extraneous and prejudicial material. As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [184], in applying the apprehended bias test, a reviewing court is not required to:
…attempt some analysis of the likely or actual thought processes of the decision-maker. [The apprehended bias test] objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to…identify what probably was done, by the decision-maker in reaching the decision in question. As was said in Ebner v Official Trustee in Bankruptcy [(2000) 205 CLR 337 at [7]] "[t]he question is one of possibility (real and not remote), not probability".
99 This is not to say that an available inference that the Tribunal did in fact have regard to the extraneous information for the purposes of its decision is immaterial. Rather, a court should not presume that because there is an insufficient basis affirmatively to infer that the Tribunal did in fact have regard to extraneous and prejudicial information, it follows that a claim of apprehended bias must fail. In such a circumstance, the fair-minded lay observer might still consider that the Tribunal might not have brought an impartial mind to the making of a decision, depending on such matters as the observer's attributed knowledge of the statutory framework, the nature of the decision and issues to be decided, and the relevant facts and circumstances leading to the decision.
100 The brevity of the analysis in MZAOL and the fact it appears chiefly to have been responsive to the argument that had been put to the Court indicate that it should not be understood as stating a rule for future cases. In particular, MZAOL should not be understood as authority for the proposition that wherever it may be inferred that the Tribunal consciously determined not to have regard to notified information with respect to the decision under review, the fair-minded lay observer would necessarily exclude the possibility that that information might nevertheless have had a subconscious influence on the Tribunal. In any event, such an approach would be inconsistent with the majority's approach in CNY17, which makes it clear that the inquiry in an apprehended bias case is a factual one, which must be answered by reference to all the relevant circumstances of the case.
101 In CNY17, the majority (Nettle and Gordon JJ, and Edelman J) held, at [51] and [110], that a decision of the Immigration Assessment Authority under Pt 7AA of the Migration Act was affected by jurisdictional error by reason of apprehended bias. Part 7AA of the Migration Act, imposed a requirement for merits review by the Authority of decisions of the Minister referred to as "fast track reviewable decisions", which include certain decisions to refuse protection visas. Section 473CB required the Secretary of the Department to give material to the Authority for the purposes of its review, including material that was in the Secretary's control and that the Secretary considered relevant to the review.
102 The Secretary had provided the Authority with 48 pages of irrelevant material involving "prejudicial opinion, innuendo and tacit suggestion": CNY17 at [96] (Nettle and Gordon JJ); [110]-[111], [138] (Edelman J). None of it had been provided to the visa applicant: see generally CNY17 at [96] (Nettle and Gordon JJ). The Authority's reasons disclosed that it had made significant, adverse credibility findings against the visa applicant in reaching the decision that his protection visa application should be refused.
103 The majority (Nettle and Gordon JJ at [51], and Edelman J at [110]) held that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material provided by the Secretary to the Authority. Their Honours considered that the information might have led the Authority to make a decision other than on the legal and factual merits of the case, because it might have led the Authority to the view that the visa applicant was not the sort of person who should be granted a visa or not a person who should be believed, even if the view was formed on a subconscious rather than conscious level: CNY17 at [51], [92], [97] (Nettle and Gordon JJ); [111], [140], [142] (Edelman J). The risk of unconscious bias was such that it could not be cured by putting the information aside: CNY17 at [97] (Nettle and Gordon JJ).
104 It is convenient to note at this point that Kiefel CJ and Gageler J disagreed with the majority, concluding that the hypothetical fair-minded observer would understand that the Departmental information could have no legitimate bearing on the Authority's review, and that the observer would not regard the information as so shocking as to give rise to the realistic possibility that knowing it would affect the subconscious mind of the Authority to the detriment of the visa applicant: CNY17 at [41], [43].
105 The facts relevant to the majority's assessment included the fact that the prejudice likely to arise from the impugned information was substantial; the Secretary was required to give the Authority any material the Secretary considered relevant to the review, and the Authority was required to consider that material (s 473DB(1)); in a letter to the visa applicant the Authority stated that it would make its decision on the basis of the material provided by the Department; the Authority's reasons stated that it had considered all the material provided to it; and the Authority did not expressly state that it had put aside the irrelevant and prejudicial information: see CNY17 at [94], [96], [98], and [99] (Nettle and Gordon JJ); and [110]-[111] (Edelman J).
106 In their joint reasons, Nettle and Gordon JJ observed (at [69]) that the question of apprehended bias can be, and often is, considered before the decision is made and that, in the case before them, an objection on the basis of apprehended bias could have been raised as soon as the Authority was given the impugned information. Their Honours considered it relevant that the Authority did not expressly state that the prejudicial material had been put to one side and did not reveal the prejudicial information to the applicant: CNY17 at [99], [100]. In concluding that the relevant facts and circumstances gave rise to apprehended bias, Edelman J also placed reliance on the fact that "[n]owhere in its reasons did the Authority suggest that any of the material provided by the Secretary was not relevant or that weight had not been placed on any of the material provided by the Secretary": CNY17 at [141].
107 In the recent case of FSG17, the appellant's primary contention was that the decision not to grant him a safe haven visa, which, as in CNY17, had been made by the Authority under Part 7AA of the Migration Act, should be set aside for jurisdictional error in the form of apprehended bias. In that case too, the Secretary had provided material to the Authority under s 473CB(1). This material included a document titled "Court Attendance Notice", indicating that the visa applicant had been charged with persistent sexual abuse of a child: FSG17 at [14]. A Full Court of this Court (Bromberg, Davies and O'Bryan JJ) found, at [16], that the Authority had "read the Court Attendance Notice, as it was required to do, because it expressly referred to it in its reasons (while stating that it would disregard it)". As the Court noted, at [30], a difference between the facts and circumstances in CNY17 and FSG17 was that in CNY17, the Authority did not refer to the departmental documents and had not expressly disavowed reliance on them.
108 The Full Court accepted, at [38], that the information in the Court Attendance Notice contained information of a highly prejudicial kind, "because it involves sexual offending against a vulnerable person, a young girl who is a ward of the State, over a lengthy period of time". The Court added:
While recognising that the information involves an allegation only and the appellant is entitled to a presumption of innocence, in our view a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to its decision by reason of being informed of the information. The observer might consider that the individual decision-maker might consciously or subconsciously form an adverse view of the appellant's character, inclining the decision-maker to the view that the appellant is not a person to whom the benefits of a visa should be extended.
109 The Full Court further accepted, at [39], that "[i]n its reasons for decision, the Authority identified the prejudicial information, cogently explained why the information was irrelevant to the decision and stated that the Authority would disregard the information in making its decision". Nonetheless, emphasising that the issue was one of apprehended, not actual, bias the Full Court surmised that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of mind: FSG17 at [41]. The Court concluded at [42]:
In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, 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.
Accordingly, the Court held that the appellant had made out his claim of jurisdictional error for apprehended bias.
110 There are, plainly enough, some salient differences between this case and the cases discussed above. This case, unlike CNY17 and FSG17, concerns a decision made by the Tribunal under Part 7 of the Migration Act, and not, as in CNY17 and FSG17, a decision made by the Authority under Part 7AA. Under the applicable provisions in Part 7AA, the Secretary must not only give any material in the Secretary's control to the Authority that the Secretary considered relevant to the review, but also the Authority is required to have regard to all that material. The reasons of the Tribunal in this case do not refer to the impugned information, either directly or by implication, although, unlike FSG17, there is no statement to the effect that the decision-maker considered the impugned information to be irrelevant to the issues arising on review. The specific nature and the volume of the impugned information, and the facts and circumstances that led to the impugned decision, were, moreover, different in each of the discussed cases from this case.
111 The differences have, however, limited relevance to the ultimate question of fact that falls for decision: whether in this case a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to its decision, by reason of the information in the Job Details Report. The facts and circumstances that bear on this decision are referable to the knowledge attributable to the hypothetical fair-minded lay observer in the circumstances of this case.
112 The first matter concerns the key aspects of the statutory framework governing the Tribunal's decision-making under Part 7 since the fair-minded lay observer is attributed with knowledge of such matters. The fair-minded lay observer is therefore presumed to know that the Secretary is only required to provide documents in the Secretary's possession or control "considered by the Secretary to be relevant to the review of the decision": see s 418(3). This observer would also be presumed to know that, as part of its regular administration of the Migration Act, the Tribunal would also be aware of that fact. The fair-minded lay observer would also be presumed to know that the Tribunal would ordinarily treat the Secretary's notification that s 438(1)(b) applies to information as sufficient for the Tribunal's purposes. Equally, such an observer would be presumed to know that the Tribunal would have read the Job Details Report to which the notification apparently attached in order to consider the exercise of its discretion under s 438(3)(a), although in this case it would be accepted that, having done so, the Tribunal consciously chose not to have regard to the notified information in reaching its decision. In summary, the fair-minded lay observer can be taken to know that when the Tribunal received the Job Details Report, it was aware the Secretary regarded the Report as "relevant" to its review, and that it would have read the Report to determine whether it should exercise its discretion to have regard to the information in it in reaching its decision on review but that it determined against an affirmative exercise of that discretion.
113 The fair-minded lay observer would also be taken to know that the Tribunal on review was required to consider whether the delegate's decision to refuse the applicant a protection visa was the correct or preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [34]-[38] (Kirby J), [98]-[99] (Hayne and Heydon JJ), [141]-[142] (Kiefel J). Such an observer would also be taken to know that the Tribunal's assessment of the applicant's protection claims depended at least in part on whether the Tribunal accepted his claims about his involvement with Mr Mousavi and the Green Movement at the time of the 2009 Iranian election and protests, his subsequent detention and torture, and his illegal departure from Iran on a false passport. The fair-minded lay observer would be taken to know that, bearing in mind the applicant's claims, whether the Tribunal accepted them would likely turn on the Tribunal assessment of his credibility, having regard to his evidence and other less tangible matters.
114 Having regard to the nature of the Tribunal's decision, the fair-minded lay observer would also have appreciated that the information in the Job Details Report could have no bearing on the substantive issues falling for the Tribunal's determination, including whether there was a real chance that he would be seriously harmed if returned to Iran on account of his political opinion or some other Convention reason, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there was a real risk that he would suffer significant harm for the reasons he claimed: see Migration Act, s 36(2).
115 A fair-minded lay observer would have understood, however, that the information in the Job Details Report was not merely extraneous, it was highly prejudicial to the applicant before the Tribunal. The Report affirmed more than once that the first respondent was the subject of an intervention order for "threatening, stalking [and] harassing a female minor" and her family. The Report also stated, authoritatively, that there was "substantial evidence…available to support integrity concerns" respecting the applicant. Further, in this context, the Report's reference to the applicant as a person of interest as a witness in a people smuggling investigation conducted by the Australian Federal Police tended to reinforce the unfavourable impression the Report presents of his character and credit. At the same time, the fair-minded observer would have been aware that the Tribunal made an unfavourable assessment of the applicant's credit, chiefly relying on inconsistencies in his evidence, and that, the Tribunal's reasons indicated that its unfavourable view of his credit was important in reaching its decision to affirm the delegate's decision.
116 In the circumstances of this case, by reason of the information in the Job Details Report, the fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision. The fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information in the Report in making its decision on review, particularly its unfavourable credit assessment. It is no answer in the present case to observe that it may be inferred that the Tribunal consciously determined not to have regard to this information for the purpose of merits review because the Tribunal did not affirmatively exercise its discretion under s 438(3) to have regard to the information. It would be plain enough to the fair-minded lay observer that the only 'relevance' of the notified information was to show that the visa applicant was not the sort of person who should be granted a visa or the sort of person who should be believed. Since the issue is one of apprehended bias, rather than actual bias, the focus is on the effect of this prejudicial information on the subconscious, rather than the conscious, mind.
117 One may accept, as Kiefel CJ and Gageler J said, in CNY17 at [19], that:
The purpose of combining the "fair-mindedness" of the hypothetical lay observer with the "reasonableness" of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the [decision-maker] falls to be determined from the perspective of a member of the public who is "neither complacent nor unduly sensitive or suspicious". Together they emphasise that "the confidence with which the [decision-maker] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds".
118 In the present case, however, while acknowledging that the information in the Job Details Report was in the nature of innuendos and generally unfavourable comment, it was nonetheless information that a decision-maker might find difficult to put out of his or her mind. In other words, a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal's approach to the decision, notwithstanding that it consciously did not have regard to the information. The touchstone for apprehended bias is not the judicial observer but the experience of the reasonably informed and fair minded lay observer, who might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it.
119 The first respondent therefore succeeds on his notice of contention. It is unnecessary to consider the other bases on which the first respondent sought to support the judgment and orders of the primary judge.