Federal Court of Australia

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary there be leave to raise the ground specified in the notice of appeal.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the joint reasons to be published of O'Callaghan and Colvin JJ. I agree with the orders proposed by their Honours, and subject to what follows, I agree with their Honours' reasons.

2    I agree that to the extent that it is necessary leave should be given to argue the matters sought to be argued. I refer to and repeat what I said in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] about leave to argue new points on appeal. The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision: cf Iyer v Minister for Immigration [2000] FCA 1788 at [22]. Whilst not intending to identify any error in the way Bromwich J helpfully summarised some of the cases in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[18] care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.

3    The real question going to the substance of the appeal is whether, once it was clear how the Minister was to put the case: that the Tribunal should not go behind the acquittal, the Tribunal could continue with the hearing and whether it was required to cease to hear the matter and refer it to a different member with the offending material excised (assuming, however, that in such renewed hearing the Minister would maintain the same position in respect of the acquittal) because a fair-minded lay observer might think that unless this were done the subconscious effect of such indelible material could never be expunged from the mind. For the reasons given by O'Callaghan and Colvin JJ this cannot be correct. The Tribunal under its constitutive legislation is an independent quasi-judicial body of skill and stature. A fair-minded lay observer would be taken to appreciate such matters. The stature and independence of the Tribunal is a feature of importance in the review of, and public confidence in, Commonwealth decision making: cf Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50] and Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 at 199-200 [32] and [33].

4    If I may also respectfully say, to the extent that one is permitted to examine the reasons of this Tribunal member in this case, they amply reflect that stature and confidence by their clarity, comprehensiveness and balance.

Associate:

Dated:    15 February 2021

REASONS FOR JUDGMENT

O'CALLAGHAN AND COLVIN JJ:

5    The appellant was convicted of three counts of sexually offending against one of his two step-daughters. At the trial of those offences he was acquitted of a separate more serious charge of sexually offending against his other step-daughter (fourth count). The appellant was then sentenced to a term of imprisonment on each of the three counts with those terms to be served concurrently.

6    By reason of his conviction and sentence, the appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, relevantly for present purposes, the person has been sentenced to a term of imprisonment of 12 months or more or has been convicted of sexually based offences involving a child.

7    Section 501CA(4) then confers a power on the Minister to revoke a cancellation under s 501(3A) if the person makes representations to the Minister and the Minister is satisfied that the person passes the character test and there is 'another reason' why the original decision should be revoked.

8    The appellant applied to the Minister to exercise the power to cancel the revocation of his visa that was conferred by s 501CA(4). A delegate of the Minister declined to revoke the visa cancellation. The appellant brought an unsuccessful review application in the Administrative Appeals Tribunal. He then brought an appeal in this Court alleging jurisdictional error by the Tribunal. Relevantly for present purposes, in this Court the appellant claimed that there was a reasonable apprehension of bias on the part of the Tribunal because it received material that was irrelevant to its decision, namely material concerning his alleged offending the subject of count four (contentious material). The claim of a reasonable apprehension of bias was rejected by the primary judge. The appellant now brings an appeal.

9    The sole ground of appeal is that the primary judge erred in concluding that the Tribunal could permissibly have taken the contentious material into account and that the Tribunal's decision was not vitiated by jurisdictional error due to apprehended bias. It is said that the primary judge should have found that the contentious material was irrelevant and so prejudicial that a fair-minded lay observer might reasonably apprehend that the Tribunal may not bring an impartial mind to the resolution of the application for review.

10    It is to be noted that the primary judge found that the Tribunal did not take the contentious material into account: at [102]-[103]. That finding is not challenged in the appeal.

11    The test to be applied in evaluating whether there is apprehended bias is whether a hypothetical fair-minded lay observer, properly informed of the nature of the decision and the context in which it was made as well as the circumstances leading to the decision, might reasonably apprehend that the decision-maker might not have brought an independent and impartial mind to the making of the decision.

12    The appellant relies upon the decision in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50. In that decision, the High Court found that material which could provide no basis for its decision was before the Immigration Assessment Authority. A majority of the Court found that because the material was before the Authority and it was prejudicial there was, in all the circumstances, a reasonable apprehension of bias because a fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits by the decision-maker.

13    The appellant advances three contentions in support of the appeal ground. The Minister claims that in certain respects those contentions were not advanced before the primary judge and that leave is required to raise those matters on appeal. The Minister opposes the grant of leave to raise those matters. The appellant maintains that the matters were advanced below, or at least that a 'similar argument' was raised and says that leave is not required. For the following reasons, to the extent necessary there should be leave to advance the ground of appeal, each of the appellant's contentions should not be accepted and the appeal should be dismissed with costs. Since preparing these reasons, we have received a draft of the reasons of the Chief Justice. We also express our agreement with those reasons.

The course of proceedings before the Tribunal

14    Prior to the Tribunal hearing, at the request of the Minister, the Tribunal issued subpoenas to the Department of Justice to produce documents relating to the imprisonment of the appellant, to the District Court to produce documents relating to the criminal proceedings against the appellant and to the Commissioner of Police to produce documents relating to the conviction of the appellant for 'indecently dealing with a child who is a relative (3 counts); Including statement of material facts, witness statements and any other relevant documents'.

15    The documents produced in response to the subpoenas included a statement of material facts that described all four counts and a statement by the complainant as to events the subject of the fourth count. The statement also concerned evidence about what might be characterised as sexualised behaviour by the appellant in relation to his step-daughter that had occurred on other occasions. There was a handwritten statement from another witness that concerned matters relevant to the fourth count as well as other behaviour.

16    The documents also included a parole review report in which the details of all four counts were set out and a copy of the single indictment stating all four counts.

17    It is to be noted that the contents of documents relating to the fourth count formed part of the documents that also related to the other counts on the indictment. It was by no means clear the extent to which there were individual documents or parts of documents that could be said to relate only to the fourth count.

18    The documents produced in answer to the subpoenas were included in the documents disclosed to the appellant prior to the hearing (known as the G documents).

19    Before the commencement of the Tribunal hearing, each of the Minister and the appellant filed a statement of facts, issues and contentions (SFIC). The appellant's SFIC was prepared by lawyers acting for the appellant and was lengthy and detailed. It made reference to the fourth count and appellant's acquittal on that count. It also made the claim that the appellant had not committed any other serious offences in any country. Reference was made to statements by the sentencing judge to the effect that her Honour was satisfied that the three offences were an isolated incident of offending 'against this child' and a statement that 'I accept that you have otherwise had a blameless life, a good work history and until this offending, you were otherwise of good character'. These matters were relied on to support the appellant's claim.

20    In the Minister's SFIC reference was made in general terms to the sentencing remarks as setting out the material facts of the appellant's offending. However, there was no reference to the acquittal on the fourth count. In particular, there was no claim that, despite the acquittal, the Tribunal should find that the appellant had engaged in the conduct the subject of the fourth count.

21    In the Tribunal hearing both the appellant and the Minister were legally represented. The documents produced in answer to the subpoenas were tendered by the Minister to the Tribunal as a bundle. No objection was raised to any part of the material nor was it suggested that parts of the material should not be placed before the Tribunal. There would have been difficulty with that course. As counsel for the appellant accepted in the appeal, some references to material that related to the fourth count was to be expected especially in proceedings where it was necessary to refer to the reasons of the sentencing judge. It may also be observed that it would be relevant to receive much of the evidence that was included in statements and court documents even if there was no claim that the appellant had engaged in the conduct specified in the fourth count.

22    Nevertheless, in submissions in the appeal, the appellant made reference to the following aspects of the documents that were received by the Tribunal as part of the bundle as being material that would give rise to apprehended bias by reason that, on the argument as advanced, it was irrelevant and highly prejudicial:

(1)    the statement of material facts which set out a summary of the offence alleged to constitute each of the four counts and described the fourth count as an alleged act of sexual penetration of the appellant's then 11-year-old step-daughter by the appellant using his fingers;

(2)    the statement of the appellant's step-daughter describing the alleged events;

(3)    the statement of a corroborative witness as to those events (being a statement that also dealt with other matters concerning the appellant's behaviour that were not part of the alleged behaviour constituting the fourth count);

(4)    a parole report that set out the allegations that formed the basis for the fourth count; and

(5)    the indictment which set out the allegations for all four counts.

23    Therefore, the contentious material was those parts of the G documents that particularised the conduct that was alleged to constitute count four.

24    During the Tribunal hearing, the appellant was cross-examined by reference to the statement of the step-daughter who was the subject of the allegations in the fourth count, but about matters in the statement that were unrelated to the actual conduct alleged to constitute the offence. Later, the appellant was also cross-examined about things he had said during the events the subject of the three counts of which he was convicted. During the course of that later cross-examination, it was put to the appellant that he asked his step-daughter whether her biological father had used her sister for sex. He was then asked whether he had said that because the sister had accused him of sexual assault. It was then put to the appellant that the sister had accused him of sexual assault. Counsel then immediately said:

You were acquitted of that and so, we don't say to you that you did that, but I'm asking why you've said this to [your step-daughter], that why you said to [your step-daughter] that her sister might have been used by her father for sex?---I didn't say about the sex. I was thinking anything your father - did anything wrong with [the sister].

25    The questions then returned to topics relating to the counts of which the appellant had been convicted. It can be seen that the issue was raised by way of a single question that was posed as an explanation for conduct which formed part of the three counts on which the appellant was convicted. It was immediately made clear that the acquittal was not being put in issue.

26    In closing address, counsel for the Minister made the following oral submission to the Tribunal:

The tribunal is obviously well aware that it can't go behind a criminal conviction and the essential facts as found. Those material facts are in the sentencing remarks at G documents 31 to 35, and it is also accepted and it's common ground between the parties that the conviction which led to the mandatory cancellation was a foundation for the exercise of the power by the tribunal in this case, and we rely on HZCP.

…

The other disputed facts are about the extent to which the applicant engaged in sexual behaviour with [the appellant's two step-daughters] on other occasions. The tribunal must not go behind the acquittal for sexual assault. There was a charge sheet in the supplementary documents that was in summons and it is clear that the applicant was acquitted of that.

But there are other matters which the tribunal which is not required to make findings about what happened, but should be of concern such as the [first step-daughter] and [second step-daughter] statements about the victims - sorry, about the applicant walking in on them in the shower, the cuddling in bed and the physical violence.

The Minister says in this regard that these facts are not critical facts that the tribunal can't go behind, of course, because they're not the basis of any conviction. But they do go, the Minister says, to an understanding of the relationship within that family over the course of the applicant's - really the problems that started to escalate in the family situation around the time. It seems that his wife got pregnant with their son and there were, the Minister says, some - there is some suggestion of inappropriate acts around that time and that there is, not in a pattern of convictions, but there is some sexualised behaviour that extends beyond the convictions in this case.

So in terms of facts, they are no doubt disputed facts and the tribunal has no evidence from [the step-daughters], oral evidence today. But the Minister says there is enough cumulatively on those other aspects. I'll return to this in regards to risk re-offending, rather than the core facts of the offending. But it does point to, not only the misunderstanding of the applicant in what constitutes inappropriate behaviour within the family unit particularly with step-daughters, not just a pattern of sexualised behaviour that leads to a risk of re-offending.

27    Therefore, the case as put by the Minister before the Tribunal was not put on the basis that the contentious documents were irrelevant. Rather, those documents were advanced as containing material that was relevant to the determination to be made by the Tribunal, but where those matters were inconsistent with the fact of the acquittal the Minister did not invite the Tribunal to make a finding of that character.

28    On any view, the Tribunal hearing proceeded with an awareness on the part of the Tribunal of the fact of the fourth count. Indeed, it is difficult to see how that could have been avoided given that it was evident from the sentencing remarks to which reference might be expected to be made. Further, it proceeded with reliance being placed by counsel for the Minister on certain aspects of the contentious documents, but not so as to allege that the appellant had engaged in the conduct the subject of the fourth count of which he was acquitted.

29    As was accepted by counsel for the appellant on the appeal, the statement of the appellant's step-daughter concerning the fourth count was not irrelevant in its entirety and if the appeal was successful and the matter remitted to the Tribunal and matters before the Tribunal took a different course it is possible that everything in the statement could have been relevant. It may be noted that the same may be said of all the contentious material because, as the primary judge found, it was open to the Minister to seek to persuade the Tribunal that the appellant engaged in the conduct that constituted the offence of which he was acquitted (recognising the need to bring to account the seriousness of the allegation in seeking to establish such matters). Rather, the submission for the appellant was confined to a claim that in the facts and circumstances of the case and what actually happened before the Tribunal, the parts of the statement (and other contentious material) that were the subject of the acquittal were irrelevant because of the way the case was put and the unreasonableness of reaching such a conclusion on the material before the Tribunal.

30    No claim was made of any impropriety by counsel for the Minister in presenting the contentious material to the Tribunal and there was no suggestion that it was done for any improper purpose.

31    As to the particular terms of the findings by the sentencing judge that were said by the appellant to be of significance, they were as follows:

(1)    In dealing with the appellant's personal circumstances: 'I accept that you have otherwise had a blameless life, a good work history and until this offending, you were otherwise of good character';

(2)    'These offences all occurred at the same time and I'm satisfied this was out of character for you'; and

(3)    'There are some mitigating factors. The first is that you have no relevant previous convictions of this nature at least, although it does have to be said that this is not unusual in sexual offending like this. The second is that you have had a supportive life and a good working history'.

General principles concerning apprehended bias

32    Statutory decision making powers are generally conferred on the basis that a fair and unbiased process will be followed in the exercise of the power: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].

33    Subject to questions of waiver and necessity, a decision-maker who must act independently and impartially will not be qualified to make a decision of that character '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 [decision-maker] is required to decide: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [4]-[7]. Despite the 'double might' aspect of the test, a finding of apprehended bias is not to be reached lightly: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. The test requires the adoption of the perspective of a fair-minded lay observer who, though not a lawyer, is taken to know both the nature of the decision-maker and the nature of the process that the decision-maker is required to undertake.

34    In applying the test, it is necessary not to lose sight of the nature of the task that is being undertaken in considering whether there is apprehended bias. It was explained in the following terms in SZRUI at [2] by Allsop CJ:

The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. 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).

(original emphasis)

35    In order to demonstrate apprehended bias, the way in which possible departure from impartial decision making may occur must be articulated: Ebner at [8]. So, a logical connection must be shown between the circumstances identified and the apprehension that the case might not be decided on its merits: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel CJ, Bell, Keane and Nettle JJ).

36    The question whether a reasonable fair-minded lay observer might reasonably apprehend a lack of impartiality is largely a factual one to be made in the legal, statutory and factual context: Isbester at [20]. Although the test is the same for many different kinds of decision making and decision-makers, the analogy with the curial process 'is less apposite the further the divergence there is from the judicial paradigm': Isbester at [22]. Therefore, the content as to what is expected of the decision-maker will often be different in the case of quasi-judicial proceedings compared to a person making a purely administrative decision: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [70] (McHugh J).

37    It is well established that the test involves postulating the position of a hypothetical fair-minded lay observer who is taken to be aware of the nature of the decision, the context in which it was made and the circumstances leading to the decision: Isbester at [23].

38    However, there are different views expressed in the decided cases concerning the relevance of statements made in the reasons for decision in those cases where the question whether there is apprehended bias is being considered after a decision has been made.

39    In Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427, Gummow ACJ, Hayne, Crennan and Bell JJ said at [67]:

An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' … impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.

(original emphasis)

40    In Ebner it was said that if the matter had already been decided 'the test is one which requires no conclusion about what factors actually influenced the outcome': at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

41    In CNY17, Kiefel CJ and Gageler J said that the bias rule is concerned as much to preserve the appearance of independence and impartiality as it is to preserve the actuality: at [18]. Then, as to the determination whether there was apprehended bias in a particular case, their Honours said at [20]:

The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.

(footnotes omitted)

42    Their Honours concluded that the reasons of the decision-maker whose decision was sought to be impugned made clear that a particular matter was not taken into account: see [32]. This finding appears to be made for the purpose of reaching a conclusion as to what was considered by the decision-maker to be relevant to the decision. The reasons then focus upon whether the hypothetical fair-minded lay observer would conclude that the content of certain irrelevant materials that were before the decision-maker might have influenced the decision to be made by the decision-maker: see [39]-[43]. That analysis is undertaken without considering the content of the actual decision.

43    As to the same issue, Nettle and Gordon JJ relied upon the passage from Michael Wilson v Nicholls that has already been quoted and said at [70]:

… the test for apprehended bias does not rest on a finding of actual bias or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision. One needs only to find that the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits.

(footnotes omitted)

44    Edelman J reasoned at [135] as follows (see also [141]):

Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision maker to 'confirm, enhance or diminish the existence of a reasonable apprehension of bias'.

(footnotes omitted)

45    Therefore, it might be said that a majority of the Court in CNY17 expressed the required approach in terms that would include a consideration of the reasons of the decision-maker in the matters of context to be brought to bear by the hypothetical fair-minded lay observer in determining whether there was apprehended bias. However, as was noted in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [106] (Allsop CJ):

The resolution of the views of the three justices in CNY17 v Minister (two in dissent, one in the majority) with the views of the majority in Michael Wilson v Nicholls and two of the justices in the majority in CNY17 v Minister is not straightforward.

46    The observations of the members of the High Court in CNY17 may be given some context by the way in which the issue was addressed in the Full Court of this Court in the decision under appeal in that case: CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159; (2018) 264 FCR 87. Writing in the minority (in reaching a conclusion that there was apprehended bias, being the view of the majority in the High Court), Mortimer J said at [17]-[18]:

Although VEAL concerned procedural fairness, as the Chief Justice noted in SZRUI, the underlying legal value or norm is common to both procedural fairness and the rule against bias (actual or apprehended): namely, the fair exercise of public powers. Each limb may deal with different aspects of fairness, but as the plurality in VEAL noted, the principles govern what a decision-maker must do in the course of making a decision, or exercising a power, and are not focussed on the outcome of the exercise of power.

I consider this question of the timing of when the Court assesses whether an apprehension of bias has arisen is of some importance. First and foremost, it means the Court does not look to what the IAA said in its reasons for decision. Second, it means the Court must place the hypothetical lay observer, and the impression such a person might form, at a relatively early stage of the IAA review, after receipt of the material from the Secretary, and then assess what apprehension might arise once the hypothetical lay observer understands the IAA is considering this material as it is working through its assessment, on the papers, of the appellant and of his claims.

47    Considered in that context, it appears that the High Court did not embrace the notion that, in a case like the present which is concerned with a claim based upon irrelevant but prejudicial material being before the decision-maker, the evaluation as to whether there was jurisdictional error by reason of apprehended bias is confined to a focus upon the point at which the material is first considered by the decision-maker.

48    Recently, in this Court in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 Bromberg, Davies and O'Bryan JJ considered whether an express disavowal of consideration of prejudicial material by the Immigration Assessment Authority could be brought to account as a matter that would 'assuage the risk that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review': at [35]. The Court in FSG17 considered the views expressed in CNY17. Their Honours then said at [36]:

Ultimately, the question of apprehended bias is a question of fact to be assessed in light of all the circumstances. In Webb, a case involving the conduct of a juror during a trial, Mason CJ and McHugh J said that a 'fair minded person would give considerable weight to the judge's conclusion that the public ventilation of the incident - together with an appropriate warning - would nullify the inference otherwise to be drawn from the irregularity' (at 53). In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, a case involving statements by the trial judge that may have given the appearance of prejudgment, the plurality accepted that in some cases an apprehension of bias can be removed by a later statement which withdraws or qualifies it, but observed that some statements or behaviour 'may produce an ineradicable apprehension of prejudgment' (at 494).

49    It was then noted by the Court that, in 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': at [39]. Nevertheless, at [42], the Court concluded:

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.

50    It appears that the current state of the law is that, at least where the complaint is of apprehended bias in relation to the decision to be made (rather than a complaint in relation to the process that was followed) the contents of a decision may be brought to account as part of the context in determining whether from the perspective of a fair-minded lay observer there was a reason why the decision may not be independent and impartial. However, in bringing the contents of the decision to account there must be due regard to the potential for some matters to operate subconsciously on the decision-maker even where there is an express disavowal of any regard to those matters. There must also be due regard to the fact that the inquiry concerns whether there is a reasonable apprehension of bias, not an inquiry as to whether there was actual bias and the apprehension may arise by reason of the way the irrelevant and prejudicial material may affect the process irrespective of the terms in which the final decision is expressed and despite incantations or protestations or assurances by the decision-maker to the contrary.

51    What is clear is that one way in which there may be a departure from the requirement for impartial decision making is where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to an apprehension of bias on the basis that it might give rise to an apprehension that the decision-maker will be influenced by that inadmissible fact: Webb v The Queen (1994) 181 CLR 41 at 74; and CNY17 at [57], [70], [92], [134]. Whether such material gives rise to apprehended bias will depend upon whether, having regard to the particular context, the material is of a kind that it may affect the decision-maker, including in a subconscious way.

52    Obviously enough, it is not sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker. What must be shown is that, having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by that material.

The appellant advanced three contentions

53    The case for the appellant in the present appeal relied upon an apprehension of bias that was said to arise from alleged irrelevant and prejudicial material being before the Tribunal, namely the contentious material that related to the fourth count. The submissions for the appellant identified three sets of questions that were said to be raised by the single ground. It then advanced contentions that were said to demonstrate that the answers to those questions supported the conclusion that the ground of appeal should be upheld. Therefore, it is convenient to address the argument for the appellant as being based on three contentions that were said to lead to the conclusion that the primary judge should have upheld the claim of apprehended bias.

The first contention: a claim that the contentious material was irrelevant

54    By the first contention, the appellant said that the contentious material was irrelevant because it would have been unreasonable for the Tribunal to have brought the contentious material to account in making a finding to the effect that the appellant had committed the offence described in the fourth count. It was submitted that it would have been unreasonable for the Tribunal to do so for two reasons. First, before the Tribunal the matter was conducted on the basis that the Tribunal could not go behind the acquittal on the fourth count. Second, there was no rational basis to make such a finding because the sentencing judge had found that the appellant had led an otherwise blameless life and the Tribunal could not be satisfied that the appellant sexually assaulted his step-daughter as alleged in the fourth count (given the degree of satisfaction required to prove such a serious matter). As to the second reason, it is to be noted that for the purposes of the first contention the appellant did not claim that the Tribunal had no authority to make such a finding. The appellant advanced that contention as part of his second contention (see below). Rather, the claim made as part of the first contention was to the effect that as any finding that the appellant had committed the offence described in the fourth count would have been unreasonable (in the sense, it would appear, that it would have been a jurisdictional error to make such a finding), it followed that the contentious material was irrelevant.

55    The first contention was somewhat tendentious. It focussed upon what occurred in the hearing after the contentious material was disclosed by the Minister in advance of the hearing, was received into evidence without objection and was, at least to some extent, the subject of cross-examination by counsel for the Minister. It was only after that point that counsel for the Minister expressly adopted the position (supported, it would seem by counsel for the appellant) that the Tribunal would not be invited to go behind the acquittal. In the appeal, it was described in submissions for the appellant as the adoption in the Tribunal of a common position by counsel.

56    The contention also ignored what occurred thereafter, namely that the Tribunal conformed to the common position of the parties and did not refer in its reasons to the conduct on which the fourth count had been based. Also, as has been noted, it was a contention that did not seek to challenge the finding of the primary judge that the Tribunal did not take into account the contentious material. Therefore, the contention ignored all of the context as to how the contentious material came to be before the Tribunal and how the Tribunal acted once it was made clear that no party invited the Tribunal to go behind the acquittal on the fourth count. In that respect, it was a contention that failed to adopt the contextual approach that the authorities require.

57    The first contention suffered from a further flaw. A decision-maker may be expected to be invited to receive material during the course of a process of decision making that may ultimately be rejected as irrelevant. Part of the regular task of a decision-maker such as the Tribunal is to evaluate whether such material is relevant and sufficiently persuasive to establish a fact or matter that bears upon the outcome. Further, as in this case, a party may narrow the issues and inform the decision-maker of its view (with or without consensus from other parties) that certain material is conceded to be irrelevant to the decision to be made by the decision-maker. In such a case, the mere fact that the material might be characterised as prejudicial, does not mean that its conceded irrelevance part way through the process calls into question the independence of the decision-maker. This is especially so where, up until that point, no party has objected to the material being before the decision-maker. Rather, the presence of the material before the decision-maker is consistent with the discharge of the decision making task which includes receiving material that may or may not properly bear on the ultimate decision. Such material is not irrelevant in the sense that it is not germane to the decision making task even though it may ultimately be found by the decision-maker to be irrelevant. As it is material of a kind that the decision-maker may have been called upon to form a view as to its relevance in the proper discharge of the decision-maker's task, it is difficult to see how its presence before the decision-maker might be said to give rise to apprehended bias.

58    It is to be noted that the primary judge explained in some detail why the contentious material was relevant in the sense that it was probative of issues that the Tribunal was required to consider: at [47]-[68]. The appellant does not seek to impugn that reasoning. Rather, it seeks to outflank that reasoning by developing a different basis upon which the contentious information is alleged to be irrelevant. The result is that the reasoning of the primary judge as to the relevance of the contentious material to the nature of the Tribunal's task remains unchallenged by the first contention.

59    It is also to be noted that in CNY17 the question of relevance was put in terms of relevance to the nature of the task being undertaken by the Tribunal. As the primary judge observed at [42]-[43] in relation to the reasoning of the members of the High Court in CNY17:

Importantly for present purposes, the High Court was unanimous that the prejudicial material was not relevant to the Authority's review. The High Court applied a standard of relevance appropriate to the administrative process of decision‑making in which the Authority was engaged. Kiefel CJ and Gageler J (at [10]) described the question as whether the material was 'capable of rationally affecting assessment of the probability of the existence of any fact about which the Authority needs to make a finding in reviewing the referred decision'. Their Honours were satisfied (at [34]) that nothing in the material was so capable, and (at [39]) that 'the 48 pages had nothing to do with the merits of the decision of the Minister to refuse to grant the referred applicant a protection visa'. It would appear that this was because it was unrelated to applicable criteria for the grant of a protection visa (see CNY17 at [26]) which, broadly speaking, principally concern whether the applicant fears persecution or faces a real risk of serious harm on return to the receiving country, and (setting aside sur place claims) generally will not turn on the applicant's conduct after coming to Australia, or on his or her character.

For Nettle and Gordon JJ, the prejudicial material 'could only plausibly have gone to questions of whether the appellant was a danger to the Australian community, or had been convicted of a particularly serious crime': at [82]. While such considerations can be a basis for refusing a protection visa, if they had in fact formed the basis of the refusal in the applicant's case, the Authority would have had no power to conduct the review, which would instead have been conducted by the Tribunal. So the Authority had no power to make a decision on the basis of the material: see [61], [82]. For Edelman J (at [124]), there was 'no basis upon which, on any reasonable view, this material could be considered relevant to the issues before the Authority. It had no legal relevance to the issues before the Authority, including any assessment of the appellant's credibility'.

60    The argument advanced for the appellant in support of the first contention did not seek to characterise the contentious material as being irrelevant in the sense described in CNY17. Counsel for the appellant made clear that the Tribunal could have regard to matters which were the subject of an acquittal in a criminal case, in an appropriate case. Also, as has been noted, there was no challenge to the finding by the primary judge that the contentious material was relevant to the statutory task being undertaken by the Tribunal in the present case in the sense that it was probative of issues that the Tribunal was required to determine. Rather, the irrelevance was said to arise from the manner in which the case was conducted before the Tribunal and the alleged unreasonableness of any contrary finding to the acquittal (or perhaps contrary to the findings in the sentencing remarks that were said to incorporate a finding that the appellant did not engage in the conduct alleged to comprise the offence of which he was acquitted).

61    The distinction is an important one. It is one thing for a decision-maker to receive material that is extraneous to the nature of the statutory task. It is material that should never be before the decision-maker. It is a different thing for the decision-maker to receive material in respect of which there is a reasonable argument that it may be brought to bear in the decision making process and then claim that as it was not ultimately advanced as being relevant or was insufficient to form the basis for a reasonable finding that it is irrelevant.

62    It would appear to be unlikely that the fact that material of the latter kind was before the decision-maker could ever give rise to apprehended bias. Conceivably the material may be so prejudicial that at the point where it is accepted that the decision-maker may not act on the material the appropriate course is for the decision-maker to refer the matter to a different decision-maker. However, the fact that the process commenced in circumstances where there was a reasonable argument that the material was relevant (and therefore was material of a kind that it was proper to put before the decision-maker) must be a significant factor in determining whether the hypothetical fair-minded lay observer, properly informed of the nature of the decision and the context, would conclude that the presence of the material meant that the decision-maker may not reach an independent and impartial decision on the merits.

63    Therefore, the first contention is not of the same character as that advanced in CNY17 and provides an unlikely foundation upon which to claim irrelevance for the purposes of demonstrating apprehended bias.

The second contention: a claim that the Tribunal had no jurisdiction to dispute findings by the sentencing judge

64    In addition to the first contention, the appellant submitted that because the foundation for the Tribunal's power to revoke the cancellation of the visa was the sentence or conviction triggering the cancellation of the visa under s 501(3A), the underlying facts supporting the sentence on the three counts on which the appellant was convicted cannot be impugned by the Tribunal. This is the contention that the Minister says was not raised before the primary judge.

65    The appellant relied upon the majority reasoning in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 to support the second contention. In HZCP the person whose visa had been cancelled sought to impugn the conviction and sentence that were the foundation for the cancellation of the visa. He disputed having engaged in conduct of the kind described by the sentencing judge when providing reasons for the sentence.

66    The way the second contention is put is to focus on particular findings by the sentencing judge (when dealing with the three counts on which the appellant was convicted). The particular statements by the sentencing judge when passing sentence that were relied upon by the appellant have already been quoted. It is said that those findings were to the effect that the appellant had led an otherwise blameless life and was otherwise of good character and that the appellant's offending was out of character.

67    It then appears to be said by the appellant that the only relevance of the contentious information would be to impugn the above findings because it was information that related to the fourth count. Therefore, so it was submitted, the Tribunal would transgress a limit on its jurisdiction if it impugned those findings because they supported the sentence imposed upon the appellant. On that basis it was said that as the contentious material could not be accepted to be true in the face of those findings (by reason of the limit on the Tribunal's jurisdiction described in HZCP) it followed that the contentious material was irrelevant.

68    Again, it is to be emphasised that it was not claimed that the contentious material, or any part of it, was accepted as true by the Tribunal. The primary judge's unchallenged finding was to the effect that the contentious material was not taken into account by the Tribunal. Rather, the contention was to the effect that by reason of the nature of the Tribunal's decision it could not impugn the findings that supported the sentence and therefore the contentious material was irrelevant and should not have been before the Tribunal. The fact that the material was before the Tribunal was then used to support the claim of apprehended bias.

69    The second submission is misconceived for two main reasons. First, it misunderstands the nature of the findings made by the sentencing judge. Second, in any event, the reasoning of the majority in HZCP did not lead to the conclusion that it would been outside the jurisdiction of the Tribunal to consider the contentious material (noting again that the Tribunal did not do so).

70    As to the first reason, the sentencing judge was engaged in a process in which the judge was required to sentence the appellant for the offending as found by the jury. The sentencing judge could not make a decision that was inconsistent with the verdict of the jury. It was not for the sentencing judge to make any finding concerning the conduct the subject of the fourth count. That finding had been made by the jury. Rather, on the basis of the jury's verdict, the sentencing judge was required to consider the nature of the offending that the jury must be taken to have found and other factors specified in the legislation concerning the process for determining sentence. The relevant legislation required mitigating factors to be taken into account.

71    Therefore, in passing sentence, to the extent necessary, the sentencing judge was making findings as to the character of the offending conduct for which the appellant had been convicted, but was making no findings concerning the fourth count on which the appellant had been acquitted. That was no part of the task of the sentencing judge and the findings about the blameless life of the appellant (and other matters) were not findings about whether the appellant had engaged in the conduct the subject of count four. They reflected only the obligation of the sentencing judge in accordance with criminal procedure to give effect to the findings of the jury in passing sentence.

72    As to the second reason, in the circumstances that were considered by the Court in HZCP, when the matter was before the Tribunal the person whose visa had been cancelled denied that he acted in the manner described by the sentencing judge in sentencing him: at [61]. It was in that context that it was held that the Tribunal was correct in concluding that evidence by which the person whose visa had been cancelled sought to impugn facts found by the sentencing judge could not be entertained: at [79] (McKerracher J), [195] (Colvin J). However, it is important to note that the reason it could not be entertained was because the question whether the relevant conviction and sentence had been imposed was found to be not part of the inquiry to be undertaken in the exercise of the power conferred by s 501CA(4)(b). Rather, the existence of the offending conduct for which the person had been convicted and sentenced was found to be the source of the power to cancel under s 501(3A) which in turn was a precondition to the exercise of the power under s 501CA(4)(b): at [71] (McKerracher J), [193] (Colvin J). It was the pursuit of a line of factual inquiry that would undermine the foundational basis upon which the power to revoke the cancellation arose that meant that it was a course that was beyond the jurisdiction of the Tribunal. The Tribunal could not call into question the existence of the very conduct that had to have occurred in order for the statutory provisions to be invoked.

73    In the present case, the contentious information could be considered without impugning the conviction and sentence. Matters of mitigation such as the good character of the appellant and whether he had led a blameless life were not facts on which the sentence of the appellant depended in the sense that if they were impugned the fact of the conviction and sentence for particular conduct that triggered the exercise of the power under s 501(3A) would be called into question. The decision by the majority in HZCP meant that the person whose visa had been cancelled in the exercise of power under s 501(3A) could not dispute the findings as to the nature of the criminal conduct that was the subject of the conviction and sentence. It did not mean that other conduct not the subject of the conviction and sentence could not be called into question (including conduct of which the appellant had been acquitted).

74    Therefore, the Tribunal had jurisdiction to consider the contentious information and whether the appellant had engaged in the conduct the subject of the fourth count because it could do so without thereby calling into question whether the appellant had committed the offence that was to subject of the conviction and sentence on the other three counts.

The third contention: a claim of apprehended bias of the kind found in CNY17

75    The third contention is to the effect that by reason of the presence of irrelevant information (said to be the contentious information that was relevant to whether the appellant had committed the fourth count) there was a reasonable apprehension of bias of the kind that was found by the majority in CNY17. For reasons already given, the contentious information was not irrelevant to the nature of the decision to be made by the Tribunal. At its highest, those parts of the contentious material that were inconsistent with the fact of the acquittal and the essential facts as found in convicting the appellant on the three counts became irrelevant once the Minister made clear that no case was being advanced that was contrary to the acquittal.

76    The appellant submitted that the contentious information was graphic and upsetting in its detailing of vile conduct allegedly engaged in by the appellant. It was said that the material was highly prejudicial and therefore the hypothetical fair-minded lay observer, properly informed of the nature of the decision and the context in which it was made might reasonably apprehend that the decision-maker might not have brought an independent and impartial mind to the making of the decision because the material was of a character that could lead to the Tribunal consciously or subconsciously bringing the material to account in forming a view as to whether the appellant was a repeat offender, had committed a very serious sexual offence that was more serious than the three counts on which he had been convicted and was a danger to young girls.

77    For the following reasons, the presence of the contentious material before the Tribunal did not give rise to apprehended bias according to the principles described above.

78    First, the Tribunal is a quasi-judicial body. The provisions of the Administrative Appeals Tribunal Act 1975 (Cth) indicate the character of the decision-makers that may be expected to be appointed to exercise the Tribunal's jurisdiction. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B. They are independent of any other part of the Executive and do not form part of a Ministerial department. They must disclose any conflict of interest and must not take part in any proceeding in which they have a conflict without the consent of the President of the Tribunal: s 14. The Tribunal has a registry and staff to undertake administrative tasks, a structure that assists in maintaining the independence of Tribunal members. A person commits an offence if the person engages in conduct that obstructs or hinders the Tribunal: s 63. Therefore, Tribunal members may be expected to be experienced in the conduct of formal hearings and have significant training or experience or both in the forensic task of identifying relevant material and ensuring that their decisions are guided only by such material. They may be expected to regularly make judgments in which they assess whether material has sufficient relevance and cogency to form a basis for making a determination on review. The fair-minded lay observer may be expected to place considerable confidence in the capacity of the Tribunal to put to one side material that is germane to the decision making task but is accepted during the course of the hearing to be irrelevant, even where that material is prejudicial to one party, especially where it is the common position of counsel that such a course should be adopted.

79    Secondly, the Tribunal conducts hearings at which parties present material that they contend is relevant to the decision making task at hand. It is the conduct of those parties that resulted in the contentious material being before the Tribunal in the present case. On the evidence, the Tribunal was not involved in forming any view that the material should be obtained. The fair-minded lay observer would infer that the Tribunal has not itself formed a view before the making of its decision that the material has a role to play in the decision to be made.

80    Thirdly, as the primary judge well explained, the relevant statutory provisions applied where a person had been convicted of child sexual offending and there was a statutory direction in place that required the Tribunal to evaluate the risk to the community that might be posed by the appellant re-offending. Therefore, the statutory role of the Tribunal was to consider material such as the contentious material and as has already been explained could, in a particular case, receive material in respect of alleged sexual offending where the person concerned had been acquitted of the offence. These findings by the primary judge are not challenged on appeal. It follows that the contentious material was relevant to the nature of the statutory task being performed by the Tribunal. The fair-minded lay observer would conclude that this was a case where the material was germane to the process and because it was the type of material that could be before the Tribunal in such a case the Tribunal could be relied upon to state in its reasons (as it was required to do) if it was to rely upon the material in reaching its decision.

81    Fourthly, the contentious material was not before the Tribunal surreptitiously or in circumstances that were not known to the parties, particularly the appellant. Rather, it was disclosed to the appellants as part of the G documents. If there was a genuine concern of the kind now contended for then steps could and would be expected to be taken by counsel to seek to remove the contentious material from that which was included in the tender of those documents. The fair-minded lay observer would conclude from the open nature of the way in which the material was presented that there was less concern for compromise of the independence of the process. Further, the fair-minded lay observer would conclude from the conduct that led to the materials being received without objection that there was likely no concern at that time that they would compromise the independence of the Tribunal. All the more so when the precise nature of the argument was not formulated until the present appeal (see the reasoning below on the question of leave to appeal).

82    Fifthly, no issue was raised on behalf of the appellant during the course of the hearing in relation to the documents being received by the Tribunal. No submission was put by counsel to the effect that the receipt of the documents was inappropriate and the appellant was being prejudiced. They were tendered without objection giving rise to a similar conclusion by the fair-minded lay observer as that stated in relation to the previous matter.

83    Sixthly, although counsel for the Minister made clear that the acquittal was not challenged and that the findings in the sentencing remarks that described the nature of the conduct for which the appellant was convicted and sentenced must be accepted on the basis of the decision in HZCP, counsel for the Minister did rely upon aspects of the contentious material to support submissions as to matters that gave rise to concerns about the risk of the appellant re-offending. Counsel for the appellant did not indicate in argument on the appeal how that part of the contentious information should have been separated in circumstances where at least part of that material was relied upon by counsel for the Minister before the Tribunal. The fair-minded lay observer would conclude that it was probably necessary for most of the contentious material to be before the Tribunal, including information about the nature of the offence of which the appellant was acquitted and therefore there could be no real prejudice arising from the fact that some small part of the material might have been excluded from the documents.

84    Seventhly, any prejudicial effect of the contentious material must be evaluated in a context where there was no dispute that the appellant had been convicted of the three counts of sex offending involving one of his step-daughters which occurred on one occasion in which he lay on a couch next to his step-daughter and masturbated, asked her personal questions of a sexual nature and indecently touched her on her thigh and breast. Therefore, there was no dispute that the appellant had been convicted of that conduct which was serious. Indeed, it was that conduct involving as it did sex offending against a child that provided the foundation for the operation of s 501(3A) and the mandatory cancellation of his visa. The fair-minded lay observer would conclude that to the extent that the nature of the alleged conduct might cause the Tribunal to form an adverse view of the appellant's behaviour, such an adverse view was likely to be formed based upon the nature of the three counts of sexual offending for which he was convicted. Any concern would be confined to the possible use of the material to draw a conclusion that there was a risk that the appellant would re-offend. As to that concern, the other factors that have been identified would be brought to account by the fair-minded lay observer.

85    The above matters are sufficient in themselves to lead to the conclusion that apprehended bias has not been demonstrated. In addition it may be noted that there was no reference to the contentious material in the Tribunal's reasons. The finding by the primary judge that the Tribunal did not have regard to the contentious material in reaching its decision is unchallenged. This is not a case where the Court is invited to rely upon a disavowal by the Tribunal of any regard to material that is irrelevant and prejudicial. Rather, the reasons indicate a focus by the Tribunal on the way in which the case was put by the Minister, described in submissions as a common position. Therefore, it is the character and quality of those reasons in focussing upon the proper subject matter for inquiry that is contrary to the claim made by the appellant and is an aspect that would be brought to bear by the fair-minded lay observer.

86    Finally, it was not correct that the decision in HZCP meant that the material was irrelevant.

Leave to argue aspects of the appeal

87    Before the primary judge it was argued that the contentious material was irrelevant because it was inconsistent with the acquittal of the appellant on the fourth count. In dealing with and dismissing that argument, the primary judge reasoned, in part, as follows at [90]-[91]:

Counsel for the applicant made a specific submission based on a remark of the sentencing judge that her Honour was satisfied beyond reasonable doubt that these offences were an isolated incident of offending against [one step-daughter]. To the extent that the contentious material, or submissions made by the Minister in reliance on it, suggested that the applicant had engaged in other inappropriate sexual behaviour against [that step-daughter], that was arguably inconsistent with this remark. I say 'arguably' because it is not abundantly clear whether her Honour is only referring to the criminal offence being isolated, as distinct from other inappropriate but possibly non-criminal conduct. But even if it is accepted that her Honour was referring to the latter, the remark is about [that step-daughter] and does not contradict any of the material about [the other step-daughter].

…

As I have said, the applicant here advanced no case that any particular circumstances surrounding the acquittal meant that the contentious material produced by the police, the Department of Justice and the District Court pertaining to the allegations concerning [the other step-daughter] should not have been taken into account or given any credence. He relied on the bare fact of acquittal alone. So there is no basis to conclude that the acquittal is a positive indication of anything.

88    No submission was advanced for the appellant to the effect that the above statements were not an accurate summary of the nature of the case advanced before the primary judge. What is now put is something different. It is said that the contentious material was irrelevant for the reasons described as part of the first and second contentions. They focus upon the way the case was run and the significance of the findings by the sentencing judge in imposing sentence on the three counts on which the appellant was convicted.

89    In that context, the objection raised by the Minister is that the arguments now advanced raise a new ground to the extent that they refer to additional sentencing remarks. That is quite a narrow objection and the Minister claims no prejudice other than possible loss of a right to appeal. Otherwise, no objection is raised to any other respect in which the argument is different to that advanced before the primary judge.

90    The principles to be applied in considering whether in the interests of justice to grant leave on appeal to raise a new ground were carefully summarised by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[17]. It may also be noted that 'generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy': Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Griffiths and Perry JJ) at [20]. In addition, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ).

91    In the circumstances of the present case, the additional reliance upon other sentencing remarks may be seen as a refinement of the appellant's argument. The argument advanced for the appellant still concerns the issue of apprehended bias. The explanation for the change may be seen in the development of the way the argument was put. Given the nature of the subject matter of the appeal and the relatively narrow additional aspect that is objected to and there being no prejudice other than the prejudice to the Minister of a lack of a right of appeal and the argument not being one that could be said to lack merit, to the extent necessary there should be leave to raise the ground of appeal.

Conclusion

92    It follows that to the extent necessary there should be leave to appeal, the ground of appeal should not be upheld and the appeal should be dismissed. There being no reason why costs should not follow the event, the appeal should be dismissed with costs.

Associate:

Dated:    15 February 2021