Reasonable apprehension of bias
34 The principles relating to a reasonable apprehension of bias are clear. In the present context there will be such a reasonable apprehension if a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA 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: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17 HCA) at [17].
35 If the Secretary provides irrelevant material to the IAA under s 473CB(1)(c) of the Migration Act, then "the totality of the circumstances that exist at the time when that question arises" are relevant to whether a reasonable apprehension of bias arises: CNY17 HCA at [20]. If the provision of that material does not suggest an "instruction, advice or opinion" of the Secretary to the IAA, but instead is said to give rise to a reasonable apprehension of bias by operation of subconscious effect, then "the hypothetical fair-minded lay observer can be expected to be more circumspect": CNY 17 HCA at [26].
36 As various cases demonstrate (including CNY 17 HCA, CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY FCA), FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456, MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152), relevant considerations in the case of an alleged subconscious effect of irrelevant material include, at the least:
(1) the nature of the material and whether it is irrelevant;
(2) the kind and extent of prejudice the irrelevant material might involve;
(3) the nature of the decision-maker;
(4) remarks made by the decision-maker during the course of a hearing;
(5) remarks made by the decision-maker in the reasons for decision as to what the decision-maker has done with the irrelevant material (but not self-serving disavowals of any possible apprehension of bias); and
(6) whether the affected person was informed about the existence of the irrelevant information and given a reasonable opportunity to comment on it.
37 As the High Court emphasised in CNY 17 HCA at [21] (citing Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [11]), in deciding if the alleged reasonable apprehension of bias is made out, "it is the court's view of the public's view, not the court's own view, which is determinative". That is, the court decides if it considers the fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. The court does not decide if it (the court) reasonably apprehends that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. This distinction is important because the relevant standard for justice being seen to be done is that of the fair-minded lay observer properly informed about the nature and substance of the required decision-making process. It is not the standard of a judicial decision-maker who is routinely presented with, and expected to discard, irrelevant and potentially highly prejudicial material.
38 Against that background, two arguments for the Minister can readily be rejected.
39 In appeal ground 1.1 the Minister asserts that the differently constituted IAA could not undertake its review without reading the first Federal Circuit Court judgment or the Full Court judgment.
40 Properly characterised, this is an argument based on necessity. There is a doctrine of necessity that operates as an exception to the rules about bias (presumably, both actual and apprehended bias). The doctrine has been described as follows in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at [39]:
The second reason for rejecting the appellant's case is that, in any event, even if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v. Proprietors of Grand Junction Canal (1852) 3 HLC 759, at pp 787-788 (10 ER 301, at p 313). The existence of the principle has been recognized in this Court by Isaacs J. in Dickason v. Edwards (1910) 10 CLR 243, at p 259, and by Brennan and Deane JJ. in Builders' Registration Board of Queensland v. Rauber (1983) 57 ALJR 376, at pp 385-386, 392. In the latter case, Brennan J. had no hesitation in holding that the principle applied to a statutory tribunal as well as to a court: see pp 385-386. And Deane J. acknowledged that this might be so: see p 392. The conclusion reached by Brennan J. upon this point conforms to principle and to received opinion in other common law jurisdictions: see the citations in Rauber, at pp 385-386, 392. The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v. Randwick Municipal Council, at pp 109-110, 112 et seq., 118-119; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, at pp 401, 442; FAI. Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 348-349, 362-363.
41 See also the discussions relating to necessity in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], [12], [40], [63]-[65], [102]-[103], [130], [172], [178]-[179], [183].
42 It is clear from the discussions in Laws and Ebner that the doctrine of "necessity" as an exception to the bias rule means that if the decision-making body cannot perform its functions as required without falling foul of the bias rule then the function must still be performed irrespective of the bias. The criterion is strict necessity, not mere convenience or practicality.
43 It may be accepted that a fundamental aspect of the rule of law is that tribunals and inferior courts are bound to apply the law as determined by the relevant court. For this reason, in CNY FCA at [36] I said that:
… the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court… It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error.
44 This does not mean that in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA. That course of action may be convenient, it may be desirable, but it is not necessary in the sense required to operate as an exception to the rule against bias. This is why in CNY FCA at [37] I said that:
…where a judgment concerns only the apprehension of bias by reason of the provision to the IAA of irrelevant prejudicial material and nothing else, the prudent administrative course would be for the Secretary not to provide that judgment to the IAA for the purpose of the new review. This is because it may be that the judgment identifies the irrelevant prejudicial material in such a way that the real possibility of a potential subconscious effect of the material in the judgment on the decision-making of the IAA might not be able to discounted.
45 It is implicit within this observation that I consider that it will not always be necessary or even administratively prudent for the Secretary to provide the IAA with a judgment about the same applicant under s 473CB(1)(c) of the Migration Act. I was not saying, however, that if the Secretary did provide the IAA with a judgment about an applicant which did nothing but deal with apprehended bias issues vitiating an earlier IAA decision, then the differently constituted IAA would itself be infected by the apprehended bias. That question must be determined on the facts in the totality of the relevant circumstances.
46 The key point for present purposes is that I do not accept that in the context of the provision of information by the Secretary to the IAA under s 473CB(1)(c) of the Migration Act, the doctrine of necessity operates so that every judgment may or must be provided by the Secretary to the IAA without any risk of a vitiating reasonable apprehension of bias arising. Putting it another way, and contrary to ground 1.1 of the notice of appeal, the differently constituted IAA could have undertaken its review lawfully without reading the first Federal Circuit Court judgment or the Full Court judgment.
47 Two other observations about ground 1.1 should be made.
48 First, there is a difference between the Secretary providing material to the IAA under s 473CB(1)(c) of the Migration act and the IAA otherwise becoming aware of information in the course of its functions. Under s 473CB(1)(c) the Secretary is to give to the IAA "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review". That is, s 473CB(1)(c) involves the Secretary exercising a specific function in respect of a specific "fast track reviewable decision" relating to a specific applicant. It is a function exercised by reference to the Secretary considering the information to be relevant to the review. This is a different context for an alleged reasonable apprehension of bias than, for example, a case where the IAA, in the ordinary course of informing itself generally about legal developments, becomes aware of a judgment. There are numerous reasons why the context is different in a way which would be likely to affect the question of a reasonable apprehension of bias arising including that:
(1) if the Secretary provides the material under s 473CB(1)(c) it reflects the Secretary's view that the material is relevant to the specific applicant;
(2) if the Secretary provides the material under s 473CB(1)(c) then, by s 473DB(1), the IAA must review a fast track decision "by considering the review material provided to the Authority under section 473CB";
(3) it is apparent that the IAA deals with applicants by their name rather than by the pseudonym which they are given in Court proceedings. As such, the IAA will not necessarily know that a judgment relates to a particular applicant unless the Secretary has provided the IAA with the judgment under s 473CB(1)(c); and
(4) the fair-minded and properly informed lay observer would be taken to understand that in the ordinary course the IAA must keep itself generally informed about the development of the law including by reading judgments relevant to its functions.
49 It follows that the mere fact that the IAA may have obtained or an IAA reviewer read a judgment in the general course of its functions is not the same as the Secretary providing the judgment to the IAA under s 473CB(1)(c) as specifically relevant to the particular fast track review decision. The former fact also does not necessarily immunise the latter from an allegation of a reasonable apprehension of bias.
50 Secondly, the respondent proposed that the Minister's contention of necessity was also answered by the fact that if a judgment disclosed irrelevant and prejudicial material and other matters relevant to the IAA's discharge of its functions, the Secretary could provide the IAA with a redacted version of the judgment in which the material a court had found to be irrelevant and prejudicial could be masked. In this regard:
(1) I accept that the Secretary could have provided the IAA in this case with a redacted version of a judgment, masking the references to the material found by the Full Court found to be irrelevant and prejudicial to the first respondent, and which resulted in the first IAA decision being vitiated on the ground of a reasonable apprehension of bias;
(2) I accept that the availability of this practical option also means that the Minister's argument based on the doctrine of necessity cannot be accepted;
(3) I do not wish to suggest, however, that in order to avoid a reasonable apprehension of bias the Secretary must only provide the IAA with a redacted version of a judgment if it contains references to material a court has found to be irrelevant and prejudicial to the applicant, and which resulted in a first IAA decision being vitiated on the ground of a reasonable apprehension of bias. This had not been done in CNY FCA and yet I concluded that, in all of the circumstances, the reasonable apprehension of bias test was not satisfied;
(4) I particularly do not wish to propose a course of action which might unintentionally refocus potential disputes into arguments that the Secretary, having decided to redact certain information, ought to have redacted other information from such a judgment; and
(5) the issue remains whether in all of the circumstances the test for a reasonable apprehension of bias is satisfied or not.
51 In ground 1.2 the Minister contends that having correctly found that the first respondent had been given an opportunity to comment at PJ [35], the primary judge should have found that "the only issue in this respect was whether the [first respondent] had had a reasonable opportunity to comment on the prejudicial information, and not whether he or his representative had actually provided any information to the second IAA on that prejudicial information (cf [PJ] [36])". At PJ [35] and [36] the primary judge said:
Third, the applicant was given an opportunity to comment on the irrelevant information. In this respect, I do not accept the submission made by the applicant that the opportunity communicated to him by the IAA in its letter dated 6 May 2020 (or otherwise) was restricted to an opportunity to comment on the approach to be adopted towards this information…
…
However, it is also relevant in the particular circumstances of this case that, as events transpired, the applicant did not provide any information to the IAA concerning the irrelevant information with the result that its highly prejudicial character was not diminished. In this aspect, the present case can be distinguished from BYX17 where, at [35(c)], the Full Court identified as one of the relevant circumstances that the applicant's representative had proffered and the IAA had accepted, 'new information' within the meaning of s.473DC to the effect that no charges would be laid against the applicant.
52 In BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [35(c)] the Full Court identified that one relevant circumstance to the question of apprehended bias, on the facts of that case, was that "the appellant's representative proffered, and the IAA accepted, "new information" within the meaning of s 473DC of the [Migration] Act, to the effect that no charges would be laid".
53 The Minister's contention in ground 1.2, properly understood, is that the primary judge in the present case erred in taking into consideration that, despite being given a reasonable opportunity to comment on the irrelevant and prejudicial material, the first respondent did not in fact provide any comment. The only basis upon which it could be said that the primary judge erred in this way is if the fact that the first respondent did not provide any comment in response to the irrelevant and prejudicial material was an irrelevant consideration. However, that cannot be correct; the fact and content of any response to the irrelevant and prejudicial material might be highly relevant to the application of the test for a reasonable apprehension of bias. If, for example, charges were withdrawn or an applicant had been found not guilty of some or other offence, and the IAA was so informed by an applicant, the prospect of any reasonable apprehension of bias arising must be dissipated, as the IAA would be expected to accept that position consistent with the fundamental legal presumption of innocence.
54 The Minister's concern is apparent in the submission that a "visa applicant cannot enhance the possibility of an apprehension of bias by refusing to provide comments on prejudicial information". Subject to the required emphasis on an applicant refusing to provide comment, this must be correct. However, this does not mean that any comment, if provided, is irrelevant. Nor does it mean that the circumstances in which an applicant did not comment and whether or not they involve a deliberate refusal to comment despite a reasonable opportunity to do so are irrelevant.
55 If this is not the way in which ground 1.2 should be understood, then the ground must mean that the primary judge gave too much weight to the fact the first respondent did not comment on the irrelevant and prejudicial material and not enough weight to the fact that the first respondent had a reasonable opportunity to do so. If understood in this way, ground 1.2 is subsumed into ground 1.3 which challenges the conclusion that the primary judge reached that in all of the relevant circumstances the test for a reasonable apprehension of bias was satisfied. As the primary judge explained at PJ [37]:
Having considered all of the relevant circumstances in this case and notwithstanding the presence amongst them of factors that might in other cases, operate to ameliorate the apprehended impact of irrelevant information on the statutory review, I have concluded that the powerfully prejudicial nature of the irrelevant information that was referred to the IAA makes a conclusion of apprehended bias irresistible. I have reached this view notwithstanding the undoubted absence of logical connection between that information and the questions which the IAA was statutorily required to determine. This is simply an acknowledgement that in this particular case, a fair-minded and appropriately informed observer might reasonably apprehend that the IAA might not bring a fair, impartial and independent mind to the determination of the matter on its merits because the irrelevant information was capable of operating on the subconscious in a manner that subverted rational or logical analysis.
56 It is apparent from this that the primary judge considered that the nature of the information disclosed in the judgments to be so prejudicial that, taken with the fact that the first respondent did not provide any comment, the other circumstances did not sufficiently weigh against the satisfaction of the test.
57 I agree with the primary judge's characterisation of the material in the two judgments which the Secretary provided to the differently constituted IAA as irrelevant and "powerfully prejudicial". In BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328 at [64], Wheelahan J distinguished the Full Court judgment, saying:
I observe that in FSG17, the information that was provided by the Secretary to the Authority was extremely potent, because it included an allegation of sexual offending against a vulnerable child. As recognised by the Full Court in that case, some sexual crimes involving a vulnerable child have the potential to be so prejudicial 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.
58 However, I am unable to agree with the primary judge's conclusion.
59 The reasons that I am unable to agree with the primary judge's conclusions are that the fair-minded and properly informed lay observer would appreciate that:
(1) it cannot be inferred that the provision of the two judgments by the Secretary to the differently constituted IAA was in any way gratuitous or intended to improperly affect the IAA's reasoning;
(2) rather, it would be inferred that the Secretary provided those two judgments (and not the irrelevant and prejudicial material itself) because the Secretary properly wished to ensure the differently constituted IAA correctly understood its legal obligations;
(3) it would be inferred from the differently constituted IAA's dealings with the first respondent that the differently constituted IAA correctly understood, including from FSG FCAFCJ [44], that because the judgments themselves referred to the irrelevant and prejudicial material, the IAA had to inform the first respondent about that material and give the first respondent a reasonable opportunity to comment;
(4) the IAA did inform the first respondent about the material and did give the first respondent a reasonable opportunity to comment. As the primary judge said at PJ [35], the opportunity was not confined to an opportunity to comment on the approach to be adopted towards the material. Procedural fairness did not require the differently constituted IAA to accede to the demands from the first respondent's representative that the IAA "provide assurances" as requested in the letter of 8 May 2020. The IAA was entitled to act on the basis of the response from the first respondent's representative that as the material was irrelevant, it was not in the respondent's interests to comment on it;
(5) in its letter of 6 May 2022 the differently constituted IAA made clear that it accepted the material was both highly prejudicial and irrelevant as found in FSG FCAFCJ. The IAA made clear that the material itself had not been provided to it and the IAA considered that the references to the material in the two judgments was not relevant and the IAA did not intend to consider it;
(6) in its reasons the IAA clearly and unequivocally explained that the references to the material in the judgments were irrelevant and had been disregarded by the IAA;
(7) while the references to the material in the judgments include that the charge against the respondent was for persistent sexual abuse of a child, that the first respondent had allegedly "met the victim by arrangement at a train station when she was 13 years old and a ward of the State; their sexual relationship continued over three years in circumstances where the [respondent] knew that the victim was under 16 years of age for most of that time" and the first respondent had been refused bail (FSG FCAFCJ at [14] and [15]; see also [38]), in FSG FCAFCJ the Full Court also said at [38] that the material involved an allegation and the first respondent was entitled to the presumption of innocence;
(8) in contrast to the circumstances in FSG FCAFCJ itself, the differently constituted IAA did not merely disavow any relevance of the material, but also informed the first respondent about the material and gave the respondent a reasonable opportunity to comment on the material;
(9) the fact of the disclosure of the material by the differently constituted IAA and the giving of a reasonable opportunity to comment to the first respondent are factors which should be given significant weight by the fair minded and properly informed lay person;
(10) the IAA is not a judicial decision-maker but is a professional decision-making body taken to understand the statutory scheme involved, the consequential irrelevance of the highly prejudicial material, and the requirement of procedural fairness to inform the first respondent about the material and give the first respondent an opportunity to comment on it. In the present case, the differently constituted IAA discharged its responsibilities consistently with these requirements and disavowed the material expressly in its reasons in clear and unequivocal terms;
(11) while there might be some cases in which the differently constituted IAA has done all that can be done to remove any appearance of apprehended bias but the test is still satisfied, it should be accepted that professional decision-makers are capable of and do routinely put aside irrelevant information without that fact giving rise to any concern that the fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear as a result of the potential subconscious effect of the material on the decision-maker's mind: CNY17 HCA at [28]. If that were not so, the system of IAA review could not function; and
(12) in all of these circumstances the test that a fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear is not satisfied because:
(a) while the fair-minded and properly informed lay observer appreciates that the differently constituted IAA is not "a passionless thinking machine" (CNY17 HCA at [28]) the observer also appreciates the capacity of a professional decision-maker to put aside the irrelevant, even if the irrelevant is highly prejudicial (as in this case);
(b) the risk of subconscious bias is itself attenuated if the decision-maker is aware of that risk, and it should be inferred in this case that the differently constituted IAA was so aware given that it clearly understood the import of the judgments it had been given by the Secretary and acted accordingly to expose to the first respondent its receipt of the judgments and the references they contained; and
(c) the course of conduct of the differently constituted IAA, including its reasons for decision, expose the care which it took to put the irrelevant matters out of its mind.
60 For these reasons I would allow ground 1.3 of the appeal.
61 However, the first respondent also filed a notice of contention to which I now turn.