Federal Court of Australia
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24
ORDERS
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: | 4 March 2021 |
THE COURT ORDERS THAT:
2. The amended notice of contention be upheld.
3. The orders of the primary judge not be disturbed.
4. Unless a party notifies in writing the Court by 4pm on 5 March 2021, indicating opposition to this order as to costs, the appellant pay the first respondent’s costs of the proceeding in this Court, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 This is an appeal from a judgment of the Federal Circuit Court of Australia. By its judgment on 16 August 2019, the Circuit Court set aside a decision made by the Administrative Appeals Tribunal on 15 October 2015 and remitted the matter to the Tribunal for determination according to law. In its 15 October 2015 decision, the Tribunal had decided to affirm a decision by a delegate of the Minister to refuse to grant the first respondent a protection visa under s 65 of the Migration Act 1958 (Cth).
2 For the reasons set out below, the appeal should be allowed and the amended notice of contention upheld.
Background circumstances
3 The history of the first respondent’s application for a protection visa is protracted.
4 The first respondent, who is an Iranian citizen, arrived in Australia on 23 July 2012. He applied for a Protection (Class XA) Subclass 866 visa (protection visa) on 21 November 2012. A delegate of the appellant Minister refused this application on 7 October 2013. This was because the first respondent failed to satisfy the delegate that he was a person in respect of whom Australia owed protection obligations under s 36(2) of the Migration Act and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth).
5 On 10 October 2013, the first respondent applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. On 15 October 2015 following review, the Tribunal affirmed the delegate’s decision. The Tribunal’s decision was the subject of an application for judicial review to the Circuit Court. That Court set aside the Tribunal’s decision on 30 January 2017 and remitted the matter for determination according to law: see CQZ15 v Minister for Immigration and Border Protection [2017] FCCA 130. The Circuit Court found that the Tribunal had erred in failing to disclose to the first respondent a certificate and notification, both of which had been made under s 438 of the Migration Act; and that this constituted a breach of procedural fairness and jurisdictional error for the reasons set out in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. In reaching this conclusion, the Circuit Court ruled as inadmissible an affidavit affirmed by Mr Vincenzo Murano exhibiting the certificate and documents said to be subject to the certificate and the notification and documents said to be subject to the notification (Murano affidavit).
6 The Minister appealed to this Court against the judgment of the Circuit Court on two grounds, one challenging the Court’s decision with respect to the inadmissibility of the Murano affidavit and another challenging the correctness of MZAFZ and in consequence the lower court’s finding of jurisdictional error.
7 On 29 November 2017, a Full Court of this Court allowed the Minister’s appeal on the basis that the Circuit Court had erred in ruling that the Murano affidavit was inadmissible: see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; 253 FCR 1 (CQZ15 FCAFC No 1). The Full Court held that the Murano affidavit was admissible because the evidence contained in it was relevant to the issue of whether there was a denial of procedural fairness, as alleged; and if a denial of procedural fairness were shown, whether the relief sought should nonetheless be refused as a matter of discretion: CQZ15 FCAFC No 1 at [88]–[90]. The Full Court held that the Circuit Court should have admitted the Murano affidavit and its exhibits into evidence and ordered that the judgment of the Circuit Court be set aside and the matter remitted to the Circuit Court to be heard and determined according to law.
8 The High Court of Australia dismissed an appeal from the judgment of the Full Court of this Court on 13 February 2019: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, and in consequence the matter returned to the Circuit Court. In substance, the High Court held that the Full Court had not erred in holding that the Circuit Court was in error in failing to admit the Murano affidavit. In the opinion of Bell, Gageler and Keane JJ, this was because the Murano affidavit “was at least potentially admissible as relevant to a determination … of the materiality of the denial of procedural fairness constituted by the failure to disclose the fact of notification”: see SZMTA at [56]. In the opinion of Nettle and Gordon JJ, this was because the Murano affidavit was relevant “for the purpose of establishing that, if there were a denial of procedural fairness, the Court should nonetheless have refused relief in the exercise of its discretion”: see SZMTA at [79].
9 On 16 August 2019, the Circuit Court again held that the Tribunal’s 15 October 2015 decision was affected by jurisdictional error. The Circuit Court set aside that decision and remitted the matter to the Tribunal for determination according to law: see CQZ15 v Minister for Immigration and Border Protection [2019] FCCA 2239 (CQZ15 FCCA 2019). This Court is concerned with the Minister’s appeal from that judgment.
Legislative framework
10 It is useful at this point to discuss the relevant legislative framework and refer to the provisions that are particularly relevant to the determination of the appeal.
11 At the applicable time, Pt 7 of the Migration Act provided for merits review by the Refugee Review Tribunal of a decision to refuse to grant a protection visa (subject to some presently irrelevant exceptions): see in particular ss 411(1)(c); 414 and 415.
12 Subsections 418(1) and (2) of the Migration Act provided that where an application for review is made to the Tribunal, the Tribunal Registrar must give the Departmental Secretary written notice of the making of the application, and that the Secretary must, within the specified time, give the Registrar a statement about the decision under review. Subsection 418(3) further provided that, as soon as practicable after being notified of the application, the Secretary must give the Registrar “each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision”. These documents were made available to the Tribunal “if and to the extent that the Tribunal itself considers them to be relevant to the review”: see SZMTA at [8].
13 In reviewing a Part 7-reviewable decision (such as a refusal to grant a protection visa) the Tribunal was not bound by “technicalities, legal forms or rules of evidence”, and was required to “act according to substantial justice and the merits of the case”: see s 420. Further, regarding a review under Division 4 of Part 7 of a Part 7-reviewable decision, s 422B provided as follows:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
14 Section 437 created an exception to the obligation of the Secretary created by s 418(3) (as well as to that created by s 427(1)(d)) to investigate and report where requested by the Tribunal: see SZMTA at [15]). Section 437 provided:
437 Restrictions on disclosure of certain information etc.
In spite of anything else in this Act, the Secretary must not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
15 In contrast to s 437, s 438, which is central to this appeal, did not prevent the Secretary from giving information or a document to the Tribunal. Rather, s 438 imposed a procedural duty on the Secretary and conferred procedural powers on the Tribunal in the event that the Secretary gave the Tribunal information or a document to which the section applied: SZMTA at [17] (Bell, Gageler and Keane JJ). Section 438 provided:
438 Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of any information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
16 Section 440 empowers the Tribunal to direct that any information given to it, in the course of a review, not be published or otherwise disclosed subject to any exceptions which it prescribes. Such directions may be given on public interest grounds.
The section 438 notifications
17 It may be useful to note at this point that the Tribunal in fact received notifications under s 438 on two occasions. On 7 October 2013 a delegate purported to issue a certificate under s 438(1)(a) and a notification under s 438(2) of the Migration Act. This certificate and notification was discussed in the previous appeal to this Court, and in the appeal in the High Court. The Minister has accepted that the certificate dated 7 October 2013 was invalid: see CQZ15 FCAFC No 1 at [74]. This appeal is not concerned with the 7 October 2013 certificate and notification.
18 Another s 438 notification, which was dated 12 February 2015, was given to the Tribunal, and is the subject of the current appeal. This notice was addressed to the “District Registrar, Refugee Review Tribunal” and headed “Notification regarding the disclosure of certain information under s 438 of the Migration Act”. Neither this notification nor the information to which it related was given to the first respondent at any time during the Tribunal’s review of the delegate’s decision. Further, the Tribunal did not disclose to the first respondent that it had received the 12 February 2015 notification and the information to which that notification related. This was information about the first respondent contained in the Job Details Report, discussed below.
19 In this 2015 notification, a delegate of the Minister stated:
I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to information provided to DIAC as an allegation relevant to file number CLF2012/237990. This information was given to [the Minister for Immigration and Border Protection/an officer of the Department of Immigration and Border Protection] in confidence.
In my view, this information should not be disclosed to the applicant or the applicant’s representative because information provided in the attached allegation was provided in confidence. As a result this information should not be disclosed to parties before the tribunal without appropriate consideration.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.
20 At the hearing of the appeal, counsel for the Minister said that this was “a notification that certain information specified therein had been given to the Minister in confidence, and it’s conceded for the purposes of this appeal that that notification was incorrect”, in the sense that the Minister conceded that the information was not given to the Minister in confidence. This is consistent with the primary judge’s finding that the information about the intervention order in the Job Details Report was derived from a copy of an intervention order received by mail by the Minister’s Department, unaccompanied by a covering letter: CQZ15 FCCA 2019 at [16].
21 The Job Details Report was a 15 page document, which included information about an intervention order to the effect that an intervention order had been made against the first respondent for “threatening, stalking, harrassing a female minor”. Although reference was made to the intervention order at various places in the Job Details Report, including under the heading “Other Character Threats” and “Related Source Information”, there was little actual information in that Report about the order other than the fact it had been made and a very brief statement of a fact that might have led someone to have sought the order. There was nothing to show whether the order was interim or final, contested or made in the first respondent’s absence. There was nothing to indicate the nature of the evidence on which the Magistrate acted.
22 The Job Details Report also contained information that indicated that the first respondent was a person of interest as a witness in a people smuggling investigation conducted by the Australian Federal Police.
23 Under a sub-heading “Results” the Job Details Report also contained information about “integrity concerns”:
"OVERALL PRIORITY RATING * HIGH (100) / Q1. Media and other interest – Current Ministerial/Exec interest / Q2. Applications – No / Q3. Source - Law enforcement or other regulatory body / Q4. Evidence – Substantial evidence is available to support integrity concerns / Q5. Grounds - No relevant cancellation grounds exist / Q6. History * Past integrity concerns of a different nature to current concerns / Q7. Onshore * Visa holder (and any family members) is currently offshore
(Emphasis added)
There was nothing in the Job Details Report to indicate any basis for such “integrity concerns” other than the matters referred to at [21] and [22] above.
Tribunal Proceedings and Decision
24 Although the parties did not address the Tribunal proceedings and decision in any detail, for reasons that will emerge, it is important to appreciate what happened before the Tribunal and the nature of the Tribunal’s reasons for its decision.
25 In the 2015 Tribunal proceedings, the first respondent claimed “to fear harm in Iran because he departed the country on a false passport while required to report monthly to the police following his arrest and torture during the post-election protests in 2009 and because he has sought asylum in Australia”: Tribunal Reasons, [3]. The Tribunal correctly identified the principal question in the proceedings as whether the first respondent had “a well-founded fear of persecution or there is a real risk he would suffer significant harm if removed from Australia to Iran”: Reasons, [21].
26 The first respondent was given an opportunity to present evidence and argument in person to the Tribunal, with the assistance of an interpreter, before the Tribunal made its decision. The Tribunal did not, however, inform him at the hearing or at any other time that it had received the 12 February 2015 notification under s 438 of the Migration Act and the Job Details Report to which the notification related. The Tribunal’s Decision Record dated 15 October 2015 does not refer to that notification, the Job Details Report, or the information in that Report.
27 The Tribunal identified the first respondent’s “core” claims with respect to the 2009 Iranian elections and protests as relating to the fact that he had been a supporter of Hossein Mousavi and the Green Movement. On the evidence before it, the Tribunal concluded that the first respondent may have supported Mousavi and the Green Movement but did not accept that he had a “significant level of involvement” with either: Reasons, [46]. This was because the Tribunal found that the first respondent’s evidence was “confused, inconsistent and sometimes very general”, and in conflict with the available country information.
28 The Tribunal did not accept the first respondent’s claims that he had been arrested while at a protest and subsequently detained and tortured, because of the Tribunal’s “significant concerns about the magnitude of [the] inconsistency [in his evidence about when he was arrested] and his confused attempts to explain it”, “which cast substantial doubt on the credibility of these claims”: Reasons, [48]. Since the Tribunal rejected these claims, it did not accept the first respondent’s related claims, including that he suffered injuries on account of his presence at the protests, that he was required to report to police regularly, that he departed Iran on a false passport, that his family had been contacted by agencies of the Iranian government asking about his whereabouts, or that his older brother was being held in prison in Iran as a political prisoner. The Tribunal concluded that there was not a real chance that the first respondent would be seriously harmed if returned to Iran “for a Convention reason or for any other reason” and that he did not have a well-founded fear of persecution. Similarly, it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there was a real risk that he would suffer significant harm. The Tribunal was therefore not satisfied that the first respondent satisfied either ss 36(2)(a) or (aa) of the Migration Act and therefore did not satisfy the criteria for a protection visa.
29 It will be clear at this point that the Tribunal did not find the first respondent to be a credible witness. Indeed, with respect to his credibility, the Tribunal stated, in its Reasons at [35]:
The representative has submitted that the applicant’s health should be taken into account in the assessment of his credibility, which the Tribunal has done. However, the Tribunal does not accept that the health difficulties experienced by the applicant can satisfactorily account for discrepancies of the magnitude of those in the applicant’s evidence. The Tribunal accepts that minor inconsistencies in an applicant’s claims should not lead irrevocably to a finding that his claims are not credible and accepts also that memory can be unreliable, particularly after some years have passed. However, the Tribunal finds that when the applicant’s evidence is considered as a whole the matters noted above are not capable of easy explanation and are significant to the assessment of the credibility of his claims and thus go also to the necessary assessment of the risk to the applicant in Iran. The Tribunal finds the applicant is not a credible witness.
30 An account of the filing of an amended judicial review application and the subsequent disclosure of the 7 October 2013 certificate and notification and the 12 February 2015 notification can be found in CQZ15 FCAFC No 1 at [3]–[11]. The subsequent judgment and reasons of the Circuit Court are described at CQZ15 FCAFC No 1 at [35]–[39], and the nature of the issues that arose on that occasion and how they arose is described at [12], [21]–[34]. As previously stated, after judgment in the High Court, the matter returned to the Circuit Court for determination in light of that judgment.
The (second) proceeding in the circuit court and (second) Decision of the primary judge
31 On 21 March 2019, the first respondent filed a further amended judicial review application in the Circuit Court. This application focussed on the 12 February 2015 notification and claimed that:
1. The Tribunal’s decision is vitiated by jurisdictional error.
Particulars
(a) Non-existence of the jurisdictional fact conditioning the power and duty of the Secretary in s 438(2), in that the precondition in s 438(1)(b) of the Act was not met – i.e., the second certificate is invalid.
(b) Additionally, and/or alternatively to (a), the Secretary had no duty and no power under s 438(2), hence the second certificate is invalid, because:
a. by the time of it (i.e., 12 February 2015), the Secretary had already discharged the duty in s 418(3) of the Act, and the Tribunal had already considered ‘on the basis of the material before it’ that it would not decide the review in the applicant’s favour; and
b. there was therefore no ‘requirement of or under this Act’ pursuant to which the Secretary could give the Tribunal the documents to which the second certificate purports to relate.
(c) Breach of procedural fairness, in that the Tribunal failed to disclose to the applicant that the Secretary had given to it the second certificate.
(d) Failure to give to the applicant a copy of the second certificate.
(e) Failure to give to the applicant a copy of the document behind the second certificate.
(f) Alternatively to (e), failure to disclose to the applicant the gist of the document behind the second certificate.
(g) Apprehended bias.
(h) Each of (a) to (g) above was an error that operated to deprive the applicant of a successful outcome.
32 In an affidavit sworn on 27 February 2019, Christopher Hibbard, a solicitor employed by a firm of lawyers acting for the Minister, deposed to receiving copies of the 7 October 2013 certificate and notification, with the documents to which it applied, and the 12 February 2015 notification, with the document to which it applied (i.e., the Job Details Report). He further deposed to having placed the documents to which the certificate and notifications related in sealed envelopes.
33 In an affidavit affirmed on 15 March 2019, the first respondent addressed the fact that the Tribunal had not told him about the 7 October 2013 certificate and notification or the 12 February 2015 notification, and the documents to which the certificate and notifications related. He said:
6. Because the Tribunal never told me about the certificates or the documents before the Tribunal, never told me about what those documents were about, and in particular never showed me the certificates or the documents, I was never in a position to say anything about any of these matters. …
7. …But first of all I want to say that if I had been shown the documents, I would have said what I say at paragraphs 18 to 38 and 42 to 46 below.
…
11. From what my current lawyer has explained to me, if my lawyer at the time had known about the certificates and the correct legal position, her advice (which I would have accepted and asked her to assert to the Tribunal) would have been that:
a. the Tribunal should tell me what view it had formed about the validity of the certificates; and
b. the Tribunal should show me the certificates.
12. If the Tribunal had then told me that, for either one or both of the certificates, it had decided that it was not valid, I would have said, to my lawyer and to the Tribunal, that I was very concerned that the Department had given an invalid certificate and some documents behind it. I would have said it just was not right that there were some documents which I didn’t know about, and didn’t know whether they helped my case … or whether they hurt my case, or could hurt my case unless I was able to know what they said and respond to them.
…
15. If the Tribunal had …told me that both certificates were valid, I would have asked my lawyer at the time what we should do then. … I would have been in a position to:
a. say to the Tribunal that there was no reason why the certificate could not be given to me, which would have allowed me, with legal assistance, to say whether I agreed that they were valid - and if I didn’t agree, at least be able to make submissions to the Tribunal;
…
b. say to the Tribunal that …it should exercise the discretion under s 438(3) and show me the documents.
…
17. Having now seen the documents behind the certificates, in particular the 15 page document behind the second certificate, I am extremely concerned that I was never given an opportunity to know what those documents were.
…
24. This [intervention] order was taken out by … the father of my then girlfriend … [She] and I are now married and have the support, to varying degrees, of every member of her family.
25. I knew of the order at the time it was taken out because it was served on me …
26. I did not mention it to the Tribunal because it had nothing to do with my claims. Also, I would have worried about the impression that it might create in the mind of the Tribunal. As I am now very worried.
27. I am very concerned that the Department thought that the fact that the order had been taken out was relevant to my claims, and decided to give the 15 page document to the Tribunal. I am very concerned that the Department gave documents that were against my character because it wanted the member of the Tribunal dealing with my case to think badly of me, and possibly for the Tribunal member to think that the fact that the Department had refused to give me a protection visa was not such a bad thing.
28. The true facts are that in 2014 [my girlfriend] and I were secretly dating. She was 17, turning 18 and I was 25. [She] said her father was religious, very culturally prejudiced and strict, and she was afraid that if he knew about us he would send her to Iran to marry. He wanted her to marry one of his cousins, and during 2014 he actually sent her to Iran … in order for her to meet him.
29. While … away, she told her father about me because she did not want to marry the cousin. …
30. Once [she] was back, she was anxious not to be disowned by her family and so we decided not to see each other and to wait for some time to pass before talking to them. We did this for some time, but our relationship developed again … When [her father] found out about this he was angry. He sent [her] to Iran again … and then he took out an intervention order against me.
31. I never threatened, stalked or harassed anyone. I missed my opportunity to tell my side of the story at the Magistrates Court …
…
35. As soon as we could, we resumed our relationship. We have lived together since December 2016. I am not religious but as it was important to [my partner], we had a religious marriage. We love each other very much and look forward to a long life together.
…
39. I am very worried that the Tribunal would think I was someone that abused women. …
In subsequent paragraphs, the first respondent deposed that had he known of the other claims made against him, he would also have explained the relevant circumstances to the Tribunal.
34 In a further affidavit sworn on 4 April 2019 and filed on behalf of the Minister, an officer of the Department sought, amongst other things, to explain the circumstances in which the 12 February 2015 notification came to be made. Besides the Job Details Report, there were a number of documents annexed to this affidavit, including an application for an intervention order, an interim intervention order dated 20 November 2014 and an intervention order dated 12 January 2015. The orders indicated that the first respondent was not in Court when they were made. Apart from the Job Details Report, these documents were not before the Tribunal. The contents of the application was, however, mentioned by the primary judge: see CQZ15 FCCA 2019 at [18].
35 In the reasons for judgment of the primary judge, her Honour noted that the focus in the rehearing before her was on the 12 February 2015 notification: see CQZ15 FCCA 2019 at [9]. Her Honour held, first, that the 12 February 2015 notification was invalid, as alleged in particular (a) at [31] above: see CQZ15 FCCA 2019 at [44], [68]. This was because, in her Honour’s view, it was clear that the information about the intervention order in the Job Details Report was not confidential and was not given to the Minister or an officer of the Department in confidence for the purposes of s 438(1)(b) of the Migration Act: see CQZ15 FCCA 2019 at [30]–[32]. Her Honour also held that, when given to the Tribunal, there was no claim in the 12 February 2015 notification that the information about the first respondent being a possible witness in a people smuggling investigation was confidential: see CQZ15 FCCA 2019 at [40]. The primary judge explained here that:
That is, I do not accept that the notification was concerned with the information that the applicant was a possible witness. I do not accept that the notification meant that the information about the applicant being a possible witness was still confidential at the time the notification was sent on 12 February 2015. That is because, realistically, the only thing that the comment on page 15 of the Report, namely, Specific Co-horts as Advised: Finalised – Insufficient Resources, could have meant was that the investigation for which the applicant was a possible witness had been finalised.
See also CQZ15 FCCA 2019 at [41]–[43].
36 The primary judge did not, however, find any merit in the allegation in particular (b) at [31] above: see CQZ15 FCCA 2019 at [69]–[70]. Her Honour explained this conclusion at [49]–[51]. In particular, the primary judge rejected the contention inherent in the first respondent’s argument in support of particular (b) that the power in s 418(3) of the Migration Act could only be exercised once in relation to each application for review: see CQZ15 FCCA 2019 at [48], [51].
37 In substance, the primary judge upheld the contentions addressed in support of particulars (c)–(f) at [31] above. Her Honour held that there was a breach of procedural fairness because the Tribunal failed to disclose to the first respondent that the Secretary had given the 12 February 2015 notification to the Tribunal, and failed to disclose that notification, the Job Details Report to which it related or the gist of that Report: see CQZ15 FCCA 2019 at [72], [74], [76], [78]. Her Honour accepted, for the most part, the argument in support of particular (h) at [31] above, to the effect that there was an error that operated to deprive the applicant of the possibility of a successful outcome before the Tribunal.
38 The primary judge so held, notwithstanding that her Honour held, at [53], that the Tribunal “paid no regard to” the Job Details Report in reaching its decision”; and, at [55], that the Tribunal’s decision could not have been different if the Tribunal had taken into account the relevant information in the Job Details Report. Her Honour found that the information was irrelevant to the questions before the Tribunal and could only have reinforced the Tribunal’s negative view of the first respondent’s claims. The primary judge accepted, however, that the decision could have been different had the Tribunal disclosed the 12 February 2015 notification to the first respondent, because he would have contended that the notification was invalid and would have given evidence about the circumstances relevant to the making of the intervention order, as set out in his affidavit filed in the proceeding before her: see [33] above. Although the primary judge did not accept that the Tribunal’s decision could have been different had the first respondent been permitted to address the reference to his being a possible witness in a people smuggling investigation, her Honour held that the decision may have been different if he had been allowed to make submissions in relation to the intervention order: see CQZ15 FCCA 2019 at [61]–[62]. In particular, the primary judge said, at [62]–[64], that:
In relation to whether the decision may have been different if the applicant had been allowed to make submissions in relation to the intervention order, it seems to me that the applicant’s evidence summarised above could have made a difference. Although it was strictly irrelevant to the decision to be made by the Tribunal, I accept that an allegation that the applicant had threatened, stalked and harassed a female minor could have coloured the Tribunal’s view of the applicant and his credibility. The applicant’s credibility was a very significant issue before the Tribunal, as the Tribunal decided that the applicant was not a credible witness: [36]. While the Tribunal nominated various inconsistences in the applicant’s evidence that led to that conclusion, there is a realistic possibility that the Tribunal’s assessment of the applicant’s credibility was affected by the information in the Report that the applicant was alleged to be a danger to girls.
I appreciate that this finding is inconsistent with the inference drawn above that the Tribunal did not take into account the information in the Report. However, in the hypothetical scenario in which the applicant was able to make submissions about the Report, the Tribunal’s attention would have been focussed on the Report in general and the intervention order in particular. In that situation, it is a realistic possibility that the Tribunal’s assessment of the applicant and his credibility could have been adversely affected by the information that an intervention order had been made against him for threatening, stalking and harassing a female minor.
As the decision of the Tribunal could have been different if the applicant had been permitted to make submissions in relation to the Report, it follows that the Tribunal made a jurisdictional error.
39 Accordingly, the primary judge in substance held that there was a jurisdictional error sufficient to deprive the first respondent of the possibility of a successful outcome, and that the decision should therefore be set aside and the matter remitted to the Tribunal for determination according to law.
40 In view of her conclusion as to the absence of procedural fairness, the primary judge held that it was unnecessary to consider the ground of apprehended bias in particular (g) at [31] above, and did not do so.
This Appeal
41 This is an appeal by the Minister against the judgment of the primary judge. By his notice of appeal the Minister alleged that the primary judge erred in finding that the Tribunal’s decision was affected by jurisdictional error. The particulars that accompanied this allegation were as follows:
a. The primary judge found that:
i. the notification purportedly given to the Tribunal by a delegate of the Secretary on 12 February 2015 under section 438(2)(a) of the Migration Act 1958 (the Notice), which stated that section 438(1)(b) applied to certain information (the Information) and advised that the Information should not be disclosed to the Respondent, was invalid ([44], [68]);
ii. the Tribunal had no regard to the information in reaching its decision ([53]);
iii. the Tribunal’s decision could not have been different if the Tribunal had taken the Information into account in making its decision because the Information was irrelevant to the questions before the Tribunal, and ‘at most, may have reinforced the Tribunal’s negative view of the [Respondent’s] claims’ ([55]); and
iv. accordingly, the Information could not realistically have resulted in a different decision ([55]).
b. Notwithstanding these findings, the primary judge concluded that:
i. if the Tribunal had disclosed the fact of the (invalid) Notice to the Respondent and the Respondent had been given an opportunity to make submissions on the Information, the decision of the Tribunal could have been different;
ii. although it was strictly irrelevant to the Tribunal’s decision, there was a realistic possibility that the Information could have affected the Tribunal’s assessment of the Respondent’s credibility;
iii. the Tribunal’s failure to disclose the fact of the (invalid) Notice to the Respondent was a breach of procedural fairness; and
iv. [] the Tribunal’s decision was therefore affected by jurisdictional error ([57]-[64], [72], [82]).
c. Having found that the Tribunal did not take into account the Information and that the Information could not realistically have resulted in a different decision, the primary judge erred in finding that the giving of the (invalid) Notice involved jurisdictional error, including because:
i. the primary judge asked the wrong question as to whether the failure to disclose the fact of the Notice deprived the Respondent of the possibility of a successful outcome, or whether disclosure of the Notice could realistically have resulted in a different decision;
ii. the primary judge should have asked only whether there was a realistic possibility that the Tribunal’s decision could have been different if it had taken the Information into account;
iii. further or alternatively, the primary judge erred in finding that disclosure to the Respondent of the Notice or the Information could realistically have resulted in a different decision, in circumstances where the Tribunal in fact paid no regard to the Information in reaching its decision.
42 By an amended notice of contention, the first respondent argued that the judgment should be affirmed on different grounds from those stated by the primary judge. These grounds were:
1. The learned judge of the Federal Circuit Court erred in failing to find that the decision of the [Tribunal] was vitiated by apprehended bias.
2. The decision of the learned judge of the Federal Circuit Court is wrong in law, in that it applied Minister [for] Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) to the effect that breach of the Tribunal’s obligation of procedural fairness (the obligation and breach being undisputed in this case) constitutes jurisdictional error only if the breach is “material”, whereas the dissenting judgment in SZMTA is correct and should have been applied.
3. The learned judge of the Federal Circuit Court erred in failing to conclude that:
(a) the second certificate was invalid because by the time of it (i.e., 12 February 2015) the Secretary had already discharged the duty in s 418(3) of the Migration Act 1958 (Cth) (the Act) and there was therefore “no requirement of or under this Act” pursuant to which the Secretary could give to the Tribunal any document to which the second certificate purported to relate; and
(b) there was no power of the Secretary to give to the Tribunal the Report, being the document to which the second certificate purported to relate.
4. The learned judge of the Federal Circuit Court erred in inferring that the Tribunal “paid no regard to the Report in reaching its decision”, in circumstances where:
(a) the Secretary gave the Report to the Tribunal as purportedly relevant to the review task of the Tribunal;
(b) the second certificate, under cover of which the Report was given, referred to the information in the Report as “an allegation relevant to” the First Respondent’s “file”;
(c) the Report was prepared by officers of the Department of Immigration and Border Protection (now the Department of Home Affairs), being the Department:
(i) for which, relevantly, the Appellant has responsibility; and
(ii) which the Secretary manages;
(d) it must be inferred that the Tribunal read the second certificate and the Report;
(e) the Tribunal did not disclaim having had regard to the Report, nor did it say that it had put the information therein conveyed out of its mind (e.g. because [the information was] irrelevant to the Tribunal’s review task);
(f) the Report contained material that was prejudicial to the First Respondent;
(g) the Tribunal found that the First Respondent was “not a credible witness”; and
(h) the Secretary gave the second certificate and the Report to the Tribunal approximately four years before SZMTA.
The Parties’ submissions
On the appeal
The Minister’s submissions
43 The Minister’s case on the appeal was that the failure of the Tribunal to disclose the (invalid) 12 February 2015 notification and to permit the first respondent to answer the information in the Job Details Report could not have constituted jurisdictional error because no failure or error was material to the decision of the Tribunal. Referring to MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68, the critical findings were, on the Minister’s submission, that the Tribunal had no regard to the Job Details Report to which the purported notification related; and that the Tribunal’s decision could not realistically have resulted in a different decision had the Tribunal taken the information in the Job Details Report into account. The Minister submitted that, in these circumstances, “the errant act of the Secretary in giving the [notification] to the Tribunal could not realistically have affected the Tribunal’s decision”.
44 The Minister further submitted that if, counterfactually, the purported notification had not been given, s 438(3) could not have created the “procedural impediment”, to which Bell, Gageler and Keane JJ referred in SZMTA at [30], with respect to the Tribunal’s consideration of the Job Details Report. In this hypothetical scenario, so the Minister submitted, for the reasons stated in SZMTA at [48], MZAOL at [66] and by the primary judge (see [38] above), there was no “realistic possibility” that the Tribunal’s consideration of the Job Details Report would have resulted in a different decision.
45 The Minister argued that the primary judge erred in finding that there was a realistic basis to suppose that the Tribunal’s decision may have been different if the first respondent had been allowed to make submissions in relation to the invalidity of the notification and the circumstances in which the intervention order was made: see [38] above. The Minister submitted in this context that the failure to disclose an invalid notification could not give rise to a denial of procedural fairness because the notification had no legal effect, as Bell, Gageler and Keane JJ noted in SZMTA at [40]. The Minister further submitted that the primary judge correctly acknowledged that her finding that the Tribunal’s decision may have been different had the first respondent been able to make submissions about invalidity and the intervention order was inconsistent with her finding that the Tribunal did not have regard to the information to which the notification related. Citing SZMTA at [47], the Minister further contended that:
[I]n posing the counterfactual requirement to assess the materiality of a particular error (here, failing to disclose the [notification]), it is wrong to speculate that the decision-maker might have made some different error (such as by considering irrelevant and prejudicial information).
(Underlining in original)
The first respondent’s submissions
46 The first respondent submitted in writing that the Tribunal’s non-disclosure of the fact that the Secretary had given the 12 February 2015 notification to it constituted breach of the Tribunal’s obligation of procedural fairness; and that non-disclosure of the invalid notification constituted a breach of an inviolable limitation governing the conduct of the review.
47 In written submissions filed on the first respondent’s behalf, it was said that the Tribunal must be taken to have read and considered the notification, together with the information to which it related, as part of its endeavour to comply with s 438. It was further submitted that:
It is not fanciful that the Tribunal may have formed a prejudiced view against the First Respondent, even if only subconsciously, from reading documents which it should not have had before it, given the source, nature and content of those documents.
The first respondent submitted that there was no error in the finding of the primary judge that the prejudicial information in the Job Details Report about the intervention order could have affected the Tribunal’s assessment of the first respondent’s credibility. At the hearing, counsel for the first respondent emphasised that had the first respondent known of the notification and the Jobs Details Report, he would have made a range of submissions of the kind to which he had earlier deposed: see [33] above.
48 The first respondent argued that the Minister’s case on appeal turned on a de-contextualised reading of the majority’s reasons in SZMTA at [47]-[48], where there was no occasion to consider “the law on a case of irrelevant, prejudicial information, including where the Tribunal does not disclaim having had regard to the information”. Citing SZMTA at [2] and [49], the first respondent submitted that the breach of procedural fairness denied him “the opportunity of countering, by evidence and submissions… the prejudicial effect on his credibility of the materials wrongly given by the Secretary” and the possibility of a successful outcome.
49 With respect to the relevance of the information, counsel for the first respondent submitted that the information in the Job Details Report should be regarded as irrelevant to the Tribunal’s decision, noting that information of the same kind was considered in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 where there was no dissent from the view that such information was properly so regarded. Counsel submitted that SZMTA and MZAOL did not support the proposition that the Tribunal disregarded the Report as irrelevant, because those cases dealt only with inferences that might be derived from relevant material and did not consider the subconscious effect of irrelevant and prejudicial material. The first respondent submitted that, if MZAOL could not be distinguished in this way, then statements at [53] and [88] were in error.
50 At the hearing, counsel for the first respondent made it clear that the first respondent relied on the entirety of the Job Details Report and on the fact that the Report was created by a Departmental officer and provided to the Tribunal by the Secretary of the Department on the basis that it had some relevance to the Tribunal’s decision. The first respondent’s argument about materiality was, essentially, that the Minister’s conception of materiality was too narrow, and that the issue required the Court to consider the consequences that might have flowed had the notification and the Job Details Report been disclosed to him. If the Report been disclosed, so counsel submitted, the first respondent could have painted “a very different picture” of his credibility and this could have affected the Tribunal’s decision, given the Tribunal’s significant credibility concerns. Counsel noted that in this case the Tribunal had not expressly disavowed the information in the Job Details Report. The first respondent submitted that the appeal should be dismissed, bearing in mind the breach of procedural fairness, the unchallenged evidence of the first respondent (see [33] above), the primary judge’s findings at [62] of CQZ15 FCCA 2019, and that the Tribunal must be taken to have read the notification and the Job Details Report. The primary judge’s findings at [62] were, of course, challenged by the Minister.
On the amended notice of contention
The first respondent’s submissions
51 Although the first respondent’s written submissions sought to support all four grounds of the amended notice of contention, his counsel focussed at the hearing on the apprehended bias ground.
52 In written submissions, the first respondent referred to authorities including CNY17 and Webb v The Queen [1994] HCA 30; 181 CLR 41, while acknowledging that “the conclusion of apprehended bias is largely a factual one, and that it is necessary to consider the facts of the case in light of the statutory context”. The first respondent submitted that:
While there are some differences between the statutory context of Part 7 and of Part 7AA, the fact remains that, at least to ‘form a view in order to attempt to comply with’ s 438, the Tribunal had to consider the [Job Details] Report – it had to read it, it had to know what it said. The Tribunal did this, without the First Respondent knowing about the existence of the Report, and, consequently, being deprived of any ability to present other compelling evidence and make submissions in relation to the totality of the evidence, as it would then have been before the Tribunal. No difference of any significance exists from the scenario considered in CNY17, by Nettle and Gordon JJ (in the majority, together with Edelman J) at [95]).
53 The first respondent contended that this was a case of the Department “purposely” creating the Job Details Report “… without taking any steps to ascertain whether there may have been a different side to the story painting the First Respondent as a stalker etc., and of the Secretary purposely then giving it to the Tribunal many, many months after the First Respondent had applied for review”. He further contended that:
The only inference that could possibly be drawn, on the evidence, is that the Secretary wanted material that could have affected the Tribunal’s view of [him], to be before the Tribunal.
In this circumstance, the first respondent submitted that the fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review as it had been provided with, and read, “objectively irrelevant prejudicial information” without affording the first respondent an opportunity to address that information.
54 Relying on CNY17, the first respondent submitted that it did not follow from the fact that the Tribunal had consciously decided not to exercise its discretion under s 438(3) to have regard to the Job Details Report that the fair-minded lay observer might reasonably apprehend that the Tribunal was not affected by the Job Details Report. This was because that observer might reasonably apprehend that the Tribunal might have been subconsciously affected by the prejudicial information in the Report. The first respondent submitted that “it cannot be inferred from absence of reference to the [Job Details] Report in the Tribunal’s reasons that it left the Report out of [] mind (including subconsciously)”.
55 In this context, the first respondent contended that MZAOL was wrongly decided and that CNY17 could not be distinguished on the basis that it concerned Part 7AA, as the Minister submitted. In summary, counsel for the first respondent submitted that in this case:
[T]he reasonable bystander might apprehend that the Tribunal might not bring an impartial mind because of the nature of the information, no opportunity to deal with it, the secretary creating the document for the purposes of conveying it under the certificate, a certificate stating that the allegation was relevant but it should not [be] disclosed. And so we say we are in [the] category … with Webb v The Queen, yes, prejudicial and relevant, but we’re also in [the] category …, association between the secretary and tribunal, and [the] category .., the conduct engaged on purpose by the secretary to provide that material and the conduct of the Tribunal in not disclosing its existence.
56 In support of ground 2 of the amended notice of contention, the first respondent submitted, in writing, formally and without much argument, that the majority view in SZMTA regarding the need for materiality for an operative breach of procedural fairness was wrong and that the minority’s view should be preferred.
57 In support of ground 3 of the amended notice of contention, the first respondent contended in writing that while s 418(3) of the Migration Act required the Secretary, as soon as practicable after being notified of an application for Tribunal review, to give the Tribunal Registrar such documents in the Secretary’s possession or control that the Secretary considers “to be relevant to the review”, the duty and associated power could be performed or exercised only once. The first respondent submitted that s 418 and Part 7, read as a whole, showed a contrary intention to s 33(1) of the Acts Interpretation Act 1901 (Cth). The first respondent re-iterated this submission at the hearing, maintaining that the provision of the information the subject of the second notification to the Registrar of the Tribunal was ultra vires.
58 In support of ground 4 of the amended notice of contention, the first respondent submitted in writing (referring to s 438(3)(a), SZMTA at [9]–[13], [14] and CNY17 at [12]) that the majority in SZMTA only considered the Tribunal’s conscious decision-making process as to whether it would “have regard to any matter contained in the document, or to the information”, or as evidential basis for findings of fact. This ground overlaps to some extent with the first respondent’s submissions on the appeal: see [49] above.
The Minister’s submissions
59 In written submissions, the Minister submitted that the notice of contention should be dismissed for substantially the same reasons as stated in MZAOL at [87]–[89], the cogency of these reasons being unaffected by CNY17. The Minister submitted that CNY17 showed that a case of apprehended bias is not always made out where the Secretary provides irrelevant and prejudicial material to a decision-maker. The Minister relied on the difference between the statutory context in CNY17, which concerned a review conducted by the Immigration Assessment Authority under Part 7AA of the Migration Act and the statutory context here, where the Tribunal conducted a review under Part 7. The Minister submitted that, as explained in SZMTA at [47], it should be assumed that the Tribunal did not have regard to information covered by a purported s 438 notice where the Tribunal gave no active consideration to an exercise of the discretion in s 438(3). The Minister submitted that, in this circumstance, the court would justifiably infer that the Tribunal paid no regard to the information to which the purported notification related. Citing the observations of Nettle and Gordon JJ in CNY17 at [51], the Minister submitted that the fair-minded observer would be aware of these features of the statutory framework governing the conduct of the Tribunal’s review in this case. There was, so the Minister submitted, no reasonable basis for the bystander to think that the mere fact that the information was given to the Tribunal might have led the Tribunal to make a decision other than on the legal and factual merits of the case.
60 Referring to CNY17 at [47]–[48], counsel for the Minister submitted at the hearing that unconscious bias (as distinct from “subconscious bias”) could not “give rise to a materiality” error, but fell to be considered under the rubric of apprehended bias. He submitted that, as in MZAOL, there was no basis for inferring that the Tribunal had conscious or subconscious regard to the impugned information. He submitted that the authorities have not put cases involving issues of credit into a separate category, or treated them differently in this context from cases involving other issues. He further submitted that the inference that the Tribunal was consciously or subconsciously influenced by the information in the Job Details Report was not open in this case because of the unchallenged finding that the Tribunal consciously did not take account of the information in the Job Details Report.
61 Counsel for the Minister further submitted that the essential question fell to be addressed on the basis that the Tribunal consciously decided to disregard the information as being irrelevant to the review. He contended that the fact that the Tribunal consciously disregarded the information in the Job Details Report should be inferred from the statutory scheme. Counsel for the Minister contended that where the Tribunal consciously disregarded the information about the intervention order in the Job Details Report as irrelevant, then a fair-minded lay observer would be taken to draw the conclusion that there was no possibility of impermissible bias through the Tribunal’s unconscious regard to that information because of the observer’s imputed knowledge of the statutory context, the relevant facts and the Tribunal’s reasons.
62 With respect to the first respondent’s other contentions, the Minister observed that this Court had accepted, as it must, that the decision of the majority in SZMTA was binding on it, and the first respondent must therefore show that there is a reasonable possibility the decision could have been different if the relevant breach had not occurred. As to s 418(3), the Minister submitted that this provision imposes a continuing obligation to provide the Tribunal with relevant information to ensure documents in the Secretary’s possession which may be relevant to the review are provided to the Tribunal. Referring to SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 at [58], the Minister submitted that there was nothing to displace the general rule that a power like that in s 418(3) may be exercised from time to time. In response to this, the first respondent submitted that SZOIN was wrongly decided, and referred to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [13].
Consideration
Minister’s ground of appeal
63 It is convenient at the outset to say something about the information to which the 12 February 2015 notification purported to attach. The notification was made in respect of “information provided to DIAC as an allegation relevant to file number CLF2012/237990”. In his affidavit of 27 February 2019 (see [32] above), Mr Hibbard deposed that:
7. At folio 164 of the File is a document titled “Notification Regarding the Disclosure of Certain Information under s 438 of the Migration Act” dated 12 February 2015 (Second Certificate).
…
8. Although not stated on the Second Certificate, I am instructed that:
(a) the Second Certificate applies to a 15 page document held on the File titled “Job Details Report”…
…
9. I am instructed that the Report is a printout from a Department database. …
64 In a subsequent affidavit affirmed on 4 April 2019, Mr Michael Thomas, a Departmental officer, stated that he believed that:
[T]he information the subject of the Notification was information relating to at least two matters contained in the Report. They are:
(a) information regarding an intervention order made against the applicant; and
(b) information regarding an investigation by the Australian Federal Police in relation to which the applicant was regarded as a possible witness.
65 This evidence of Mr Hibbard and Mr Thomas was apparently unchallenged. Mr Hibbard’s evidence was, in substance, that the notification applied to the whole of the Job Details Report. Mr Thomas’s evidence was to the effect that it applied to “at least” the information about the intervention order and an AFP investigation (i.e. the people smuggling investigation). In her reasons, her Honour also included (at [14]) reference to the “integrity concerns” information. The inclusion of this latter matter was consistent with Mr Hibbard’s evidence and not inconsistent with that of Mr Thomas.
66 It must be recalled, however, that the Tribunal had only the notification. It did not have any guidance of this kind. The notification stated only that it applied to “information provided to DIAC as an allegation relevant to file number CLF2012/237990”, being the Job Details Report supplied to the Tribunal. It would have been open to the Tribunal to have understood the notification to relate to any “allegation” in the Job Details Report that could have been considered to constitute information given to the Department in confidence for the purpose of s 438(1)(b) of the Migration Act. This might have been any of the matters to which reference has been made. As reference to these matters occurs throughout the Report, this might have led the Tribunal to conclude that, as a practical matter, the notification related to the whole of the Report, consistently with Mr Hibbard’s evidence. This was also consistent with the way the first respondent’s case on the appeal was argued.
67 The primary judge took a different approach, which focussed almost entirely on the intervention order information: see CQZ15 FCCA 2019 at [39]–[40]; also above [21]–[23]. In this respect, her Honour’s approach may have been inconsistent with the unchallenged evidence of Mr Hibbard and Mr Thomas referred to above. Nothing ultimately turns on this here. It is clear, however, that it was open to the Tribunal to have conducted the review on the basis that, for practical purposes, the 12 February 2015 notification should be treated as covering the whole of the Job Details Report. The following analysis proceeds on this basis.
68 SZMTA establishes that when the Secretary notified the Tribunal in writing under s 438(2)(a) of the Migration Act that s 438(1)(b) applied to certain information given to the Department on the basis, so it was said, that the information had been given in confidence, the Tribunal incurred an obligation of procedural fairness to disclose the fact of that notification to the applicant before it (now the first respondent in this proceeding). The fact that no such notice was given did not, however, necessarily give rise to jurisdictional error. Jurisdictional error on the part of the Tribunal would only be shown if the breach were material in the sense that the breach operated to deny the applicant an opportunity to present evidence and argument and in so doing deprived him of the possibility of a favourable decision. As Bell, Gageler and Keane JJ said in SZMTA at [49]:
Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions…
69 Furthermore, SZMTA establishes that where, as in this case, the Secretary gave an invalid notification because the information to which the notification related was not in fact given in confidence as s 438(1)(b) required, the Secretary’s purported exercise of statutory authority was of no legal effect in relation to the information. While the giving of the invalid notification could also give rise to jurisdictional error, it would not necessarily do so. In the words of Bell, Gageler and Keane JJ in SZMTA at [44]:
The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection [(2018) 264 CLR 123 at 134-135 [29]-[31]], however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
70 Materiality is therefore essential to a conclusion of jurisdictional error, whether the error is identified as a breach of procedural fairness constituted by a failure to disclose a notification made under s 438(2)(a), or a breach of “an inviolable limitation governing the conduct of the review” arising from the provision of an invalid notification: see SZMTA at [45].
71 The outcome of the Minister’s appeal turns on this question of materiality, which is itself a question of fact to be determined “by inferences drawn from evidence adduced on the application”, and in respect of which the applicant before the primary judge bore the onus of proof: see SZMTA at [46]. In order to establish that a breach was material, the applicant before the primary judge was required to show that there was a realistic possibility that the Tribunal’s decision could have been different if the breach had not occurred.
72 SZMTA can also be accepted as authority for the proposition that, in the context of this inquiry, it should be accepted that: (1) the Tribunal would ordinarily treat the Secretary’s notification that s 438(1)(b) applies to information as sufficient for the Tribunal’s purposes; and (2) if it appears that the Tribunal has given no “active consideration to an exercise of discretion under s 438(3)”, there being no contrary indication in the Tribunal’s statement of reasons for its decision or otherwise in the evidence, it should also be accepted that the Tribunal has left that information out of account in reaching its decision: SZMTA at [47].
73 In the present case, it was common ground that the relevant information in the Job Details Report did not satisfy s 438(1)(b) of the Migration Act and the Secretary’s purported notification was invalid; and that nonetheless the Tribunal would have acted on the basis that the notification that s 438(1)(b) applied was correct. If it was open to the primary judge to infer that, in reaching its decision, the Tribunal had no regard to the information to which the invalid notification purported to relate, then the critical question was “whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account”: SZMTA at [48]. As noted earlier, the primary judge in this case inferred that the Tribunal had “paid no regard” to the information in the Job Details Report. Further, as already noted, while the first respondent did not challenge this finding in terms, the first respondent argued that this finding and the passage in SZMTA at [47] on which it depends referred only to paying “conscious” regard to the information. This argument is addressed at [84] below and following.
74 In order to facilitate a reviewing court’s determination “both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred”, SZMTA upheld the proposition that evidence of the content of the document or information was relevant and admissible: SZMTA at [50]. The primary judge therefore took account of the contents of the Job Details Report in reaching her decision, as does this Court on appeal.
75 This is not, of course, the first occasion on which a Full Court of this Court has been required to consider the application of SZMTA. SZMTA arose for consideration in MZAOL, although the focus of the appellant’s submissions in that case was not on the Tribunal’s admitted failure to disclose an invalid notification but on its failure to disclose the information the subject of that invalid notification: see MZAOL at [51]. The issue as identified by the Court was whether the Tribunal’s possession of the impugned information, in circumstances where the information was not disclosed to the applicants before the Tribunal, deprived those applicants of the possibility of a successful outcome. It may be recalled that the three individual cases discussed in SZMTA chiefly focussed on the effect of the failure to disclose the fact of (admittedly invalid or defective) notifications.
76 The question the Minister has raised by his appeal is whether, having regard to SZMTA and MZAOL, the primary judge erred in holding that the Tribunal’s decision could have been different had the Tribunal disclosed the (invalid) notification of 12 February 2015, because this would have permitted the applicant (the first respondent in the appeal) to have contended that the notification was invalid and to give evidence about the circumstances relevant to the making of the intervention order (presumably on the assumption that the Tribunal would have accepted his invalidity contention – and been persuaded to disclose the relevant information to him in consequence – or make a favourable exercise of the s 438(3) discretion having rejected his invalidity contention).
77 As in MZAOL, there are a number of considerations that weigh against the Minister’s contention that the primary judge erred in finding the materiality requirement satisfied. First is the fact of the notification. The notification was purportedly given by the Secretary under s 438(2). It stated (contrary to the fact) that s 438(1)(b) applied “to information provided to [the Department] as an allegation relevant to file number CLF2012/237990”. It advised that it was the Secretary’s view that the information was given in confidence and should not therefore be disclosed. Secondly, as observed by the Full Court in MZAOL at [54], the Tribunal would have understood the information in the Job Details Report to which the purported notification related to have been given to the Tribunal as part of the Secretary’s obligation in s 418(3) to give the Registrar of the Tribunal documents “considered by the Secretary to be relevant to the review of the decision”.
78 Further, having regard to SZMTA at [47] (see [72] above), it should be inferred that the Tribunal proceeded on the basis that the notification was valid and it understood that its use of the relevant information was governed by s 438(3) of the Migration Act. It may thus fairly be assumed that the Tribunal read the information at least for the purpose of considering the exercise of the discretion in s 438(3)(a) as to whether to have regard to the information for the purposes of the review. It may also be accepted that the information in the Job Details Report was, as in MZAOL, “objectively considered, capable of being considered by the Tribunal as relevant to the reliability or truthfulness of the claims made and evidence given” by the applicant before it: MZAOL at [62].
79 To adapt the words of the Court in MZAOL at [62], the information in the Job Details Report was “capable of supporting the making of adverse credit findings” against the first respondent. Indeed, none of the information in that Report to which reference has been made (whether about the making of an intervention order to protect “a female minor”, “integrity concerns” or being a possible witness in a people smuggling investigation) could, on the face of it, be thought relevant to anything other than the credit of the applicant before the Tribunal. It may be assumed that the Tribunal would have noted that the order was made by a court and that the other information emanated from official sources and accepted the reliability of the information, so far as it went.
80 Significantly, however, in support of the Minister’s case, there is nothing in the Tribunal’s reasons for decision to indicate that it had any regard to any aspect of the information in the Job Details Report. The Tribunal’s reasons do not at any point refer to any information or evidence that may have been derived from the information to which the notification purportedly related. It may be inferred from this that the Tribunal did not regard the information in the Job Details Report as part of the evidence or other material on which any of its findings of material fact were based: see s 430(1). Further, there is no indication that the Tribunal made any decision under s 438(3)(a) to exercise its discretion to have regard to the information to which the notification purported to attach and, consistently with this, nothing to suggest that it had any occasion to consider whether it should disclose the information to the applicant before it under s 438(3)(b).
81 If the Tribunal’s reasons for adverse credit findings were ill-explained or lacked evident justification, a reviewing court might nonetheless infer that the Tribunal had been influenced by the adverse information that had come to its notice in considering whether to exercise its discretion under s 438(3) to have regard to the information: MZAOL at [77]. That is not this case. As earlier stated, although the Tribunal made adverse credit findings against the first respondent, it did so for clear and independent reasons. It rejected the first respondent’s core claims because of major inconsistencies in his evidence about significant events. As we have seen, with its rejection of the first respondent’s core claims, the Tribunal rejected his related claims. The Tribunal made it clear that ultimately it found that the first respondent was not a credible witness because of the major and demonstrated discrepancies in his evidence.
82 While it should be assumed that the Tribunal acted on the basis that the notification made under s 438 was valid, and plainly the Tribunal did not purport to exercise the discretion under s 438(3)(b) to disclose any of the information to which the notification attached to the first respondent, there is no objective basis for inferring that the Tribunal had regard, consciously or unconsciously, to the information in the Job Details Report in making its decision. To adapt the language of the Full Court in MZAOL at [76], given the prejudicial nature of the information in that Report, there is “good reason for thinking that a fair minded Tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason”.
83 As we have seen, the Tribunal’s decision was adverse to the first respondent when it affirmed the delegate’s decision not to grant a protection visa. This decision could not realistically have been any different had the Tribunal taken into account any of the information in the Job Details Report to which reference has been made. At most, this information could only have fortified the Tribunal’s already adverse credibility assessment. Had the (invalid) notification been disclosed to the first respondent while an applicant before the Tribunal, and he been afforded an opportunity to persuade the Tribunal that the notification was invalid or that the information to which it related should be disclosed to him, whatever he might have said could have made no difference to the Tribunal’s decision because there is no evidence from which it could or should be inferred the Tribunal had regard to the information to which the notification related. In substance, the first respondent did not discharge his onus of proof that the making of the notification operated to his detriment in any material way.
84 As we have seen, the first respondent emphasised the difference between “consciously” taking into account prejudicial material and the “subconscious” effect of that material on the Tribunal’s decision-making. He maintained that SZMTA and MZAOL addressed only the conscious consideration of such material and did not address the possibility of a subconscious effect. This submission should be rejected.
85 In assessing whether a breach of procedural fairness or a breach of “an inviolable limitation governing the conduct of the review” is material in the sense that there is a realistic possibility that the Tribunal’s decision could have been different had the breach not occurred, a reviewing court must determine, in the present context, how the Tribunal acted in fact in relation to the notified information: SZMTA at [50]. This question of fact falls to be answered “by inferences drawn from evidence adduced on the application”: SZMTA [46]. That is, it is for the applicant to satisfy the reviewing court on the evidence before it that the Tribunal did in fact have regard to the material. A finding that the Tribunal did not have regard to the information means that the Tribunal did not in fact act on it, whether consciously or unconsciously it does not matter. Such a finding means that the applicant has been unable to discharge his or her onus of proof: MZAOL at [66]; CQZ15 FCAFC No 1 at [65].
86 The finding made by the primary judge (at [53]) that the Tribunal paid no regard to the information in the Job Details Report left no room for the possibility that the Tribunal’s decision could have been different if the first respondent had been afforded the opportunity to make submissions concerning the intervention order referred to in that Report, as her Honour opined (at [55]). Indeed, her Honour’s appreciation (at [63]) was clearly correct that her finding that the Tribunal’s decision “may have been different” had the first respondent been permitted to make these submissions was inconsistent with her finding that the Tribunal paid no regard to the Report. Her Honour’s analysis depended on a “hypothetical scenario” in which, in affording the first respondent the opportunity to make submissions, the Tribunal’s attention was focussed on the intervention order. In her Honour’s words, “[i]n that situation, it is a realistic possibility that the Tribunal’s assessment of the applicant and his credibility could have been adversely affected by the information …”. At this point, however, it is clear that the primary judge had travelled outside the bounds of the materiality question, which depended on finding what in fact the Tribunal had done. In summary, there was no sufficient evidential basis for the primary judge’s conclusion that the Tribunal’s decision could have been different had there been no breach of procedural fairness or a breach of “an inviolable limitation governing the conduct of the review”.
87 For the foregoing reasons, the Minister’s ground of appeal should be upheld.
First respondent’s principal contention
88 As already noted, the first respondent’s principal contention in support of the judgment of the Federal Circuit Court was that the Tribunal’s decision was affected by jurisdictional error in the form of apprehended bias.
89 The relevant principles relating to apprehended bias in an administrative decision-making context are relatively well settled. They are set out in numerous cases, including CNY17 at [17]–[18] (Kiefel CJ and Gageler J); [69]–[70] (Nettle and Gordon JJ); and [131]–[132] (Edelman J); FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [32]; Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 at [61] and following; and ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]–[36].
90 The test for apprehended bias in administrative decision-making is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that the decision-maker is required to decide: CNY17 at [17] (Kiefel CJ and Gageler J); [56] (Nettle and Gordon JJ); and [132] (Edelman J). At least the following two steps are involved in a case involving a claim of apprehended bias: first, it is necessary to identify “what it is that might lead a decision-maker to decide a case other than on its legal and factual merits”: CNY17 at [57] citing Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [21]. One class of thing that may be identified as giving rise to partiality on a decision-maker’s part is the possession of extraneous information. As Deane J said in Webb at 74 in relation to extraneous information, there is a category of cases where “knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”. In this case, as already noted, the first respondent’s contention is that the Tribunal’s knowledge of the irrelevant and prejudicial information in the Job Details Report gave rise to an apprehension of bias. Secondly, there must be an articulation of the logical connection between the identified thing and the feared deviation from the course of deciding a case on its merits: CNY17 at [57], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]. In this case, as already noted, the first respondent argued that the fair-minded lay observer might have apprehended that the “objectively irrelevant prejudicial information” given by the Secretary to the Tribunal in the Job Details Report might have unconsciously encouraged the Tribunal to form an adverse view of the first respondent’s character and credit.
91 In the context of apprehended bias, the hypothetical fair-minded lay observer is attributed with the appropriate knowledge to be able to make a reasonably informed assessment of the likelihood of apprehended bias. Such knowledge includes knowledge of the relevant legal framework – in this case knowledge of the procedures governing the Tribunal’s decision-making under Part 7 of the Migration Act. The hypothetical observer is also attributed with knowledge of the identity of the decision-maker, the nature of the decision and issues in question, and of the relevant facts and circumstances leading to the decision, including, of course, the impugned conduct: see, for example, CNY17 at [17] (Kiefel CJ and Gageler J); [58] –[59] (Nettle and Gordon JJ); Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ); Re Refugee Review Tribunal v Ex parte H [2001] HCA 28; 75 ALJR 982 at [27]–[28]. It has been authoritatively stated that the fair-minded lay observer has “broad knowledge of the material objective facts … as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]”: Webb at 73, as quoted in CNY17 at [58]. In the latter case, Nettle and Gordon JJ added, at [59], “[w]here, however, … the statutory scheme is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme”.
92 As the courts have repeatedly noted, the apprehended bias rule is concerned with protecting the public appearance of independence and impartiality, and does not require a finding that the irrelevant and prejudicial information in fact affected the decision made by the decision-maker, here the Tribunal: see, for example, CNY17 at [18] (Kiefel CJ and Gageler J); [70] (Nettle and Gordon JJ); and [131] (Edelman J); and AMA16 at [62] (Griffiths J, with whom Dowsett and Charlesworth JJ relevantly agreed).
93 The principles relating to apprehended bias have been recently applied in relation to administrative decision-making in the review of decisions under the Migration Act, including MZAOL, CNY17 and, since this case was argued, FSG17.
94 Besides the ground already mentioned, the appellant in MZAOL contended that the Tribunal’s decision with regard to her was affected by apprehended bias, relying on the fact that not only had the Tribunal failed to disclose an invalid notification under s 438 of the Migration Act, but also that the notification concerned prejudicial information adverse to her character and credit. On account of the way the appellant put her case, the Full Court’s analysis in MZAOL with respect to apprehended bias relied heavily on its reasoning with respect to the procedural fairness ground. The starting point for the Court’s analysis in this case was the fact that, in the regular administration of the Migration Act, the Tribunal would have understood that, unless it affirmatively exercised its discretion under s 438(3) to do so, it could not have regard to the notified information and had in fact determined that such an exercise of discretion was unwarranted. The Full Court reasoned, in substance, that since it should be inferred that the Tribunal had consciously determined not to have regard to that information, there was no basis upon which it might be said that the information might have affected the Tribunal’s decision-making. The Court held, at [88], that:
The same inferences, made for the same reasons, ought to be attributed to the fair-minded and appropriately informed reasonable observer. … If, as to be inferred here, the Tribunal came to the view that there was no reasonable basis or good reason for having regard to the impugned information despite its obvious relevance and the relevance attributed to it by the Secretary, there is no basis for thinking that the Tribunal might have been influenced by the information, even subconsciously.
The Court concluded that the appellant had failed to make out a case of apprehended bias.
95 There may be difficulties with the analysis in MZAOL if it is understood to mean that where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, it necessarily follows that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information.
96 Whether it should be inferred that the Tribunal had regard to notified information for the purposes of procedural fairness is a question to be answered from the perspective of the reviewing court. As already noted, a claim of apprehended bias is to be considered from the different perspective of the fair-minded lay observer. In this respect, in Islam v Minister for Immigration and Citizenship [2009] FCA 1526, Finn J said, at [49]:
While the significance of “subconscious effect” is to be treated with circumspection in procedural fairness cases given the relevant inquiry in such cases: cf Applicant VEAL [of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88] at [19]; the issues of appearance and judgment in apprehended bias cases are, in my view, differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial) observer.
97 On this basis, Finn J went on to say that the lay observer, by contrast to the judicial observer, “might experience some difficulty or reserve in accepting the potential efficacy of a self-imposed Chinese wall” (at [50]). In the same way, the lay observer might find it difficult to accept that, there is no possibility that the Tribunal might be subconsciously influenced by prejudicial information after it had read that information for the purpose of considering whether to exercise the discretion under s 438(3) to have regard to that information for the purpose of merits review.
98 Further, the materiality inquiry discussed above asks whether it should be inferred from the Tribunal’s reasons that the Tribunal did, in fact, have regard to the information. With respect to apprehended bias, the question is whether the fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues to be decided. For a claim of apprehended bias to succeed, it is, of course, not for the fair-minded lay observer to be satisfied that the Tribunal did, in fact, have a partial mind because its deliberation was in fact subconsciously affected by the relevantly extraneous and prejudicial material. As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [184], in applying the apprehended bias test, a reviewing court is not required to:
…attempt some analysis of the likely or actual thought processes of the decision-maker. [The apprehended bias test] objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to…identify what probably was done, by the decision-maker in reaching the decision in question. As was said in Ebner v Official Trustee in Bankruptcy [(2000) 205 CLR 337 at [7]] “[t]he question is one of possibility (real and not remote), not probability”.
99 This is not to say that an available inference that the Tribunal did in fact have regard to the extraneous information for the purposes of its decision is immaterial. Rather, a court should not presume that because there is an insufficient basis affirmatively to infer that the Tribunal did in fact have regard to extraneous and prejudicial information, it follows that a claim of apprehended bias must fail. In such a circumstance, the fair-minded lay observer might still consider that the Tribunal might not have brought an impartial mind to the making of a decision, depending on such matters as the observer’s attributed knowledge of the statutory framework, the nature of the decision and issues to be decided, and the relevant facts and circumstances leading to the decision.
100 The brevity of the analysis in MZAOL and the fact it appears chiefly to have been responsive to the argument that had been put to the Court indicate that it should not be understood as stating a rule for future cases. In particular, MZAOL should not be understood as authority for the proposition that wherever it may be inferred that the Tribunal consciously determined not to have regard to notified information with respect to the decision under review, the fair-minded lay observer would necessarily exclude the possibility that that information might nevertheless have had a subconscious influence on the Tribunal. In any event, such an approach would be inconsistent with the majority’s approach in CNY17, which makes it clear that the inquiry in an apprehended bias case is a factual one, which must be answered by reference to all the relevant circumstances of the case.
101 In CNY17, the majority (Nettle and Gordon JJ, and Edelman J) held, at [51] and [110], that a decision of the Immigration Assessment Authority under Pt 7AA of the Migration Act was affected by jurisdictional error by reason of apprehended bias. Part 7AA of the Migration Act, imposed a requirement for merits review by the Authority of decisions of the Minister referred to as “fast track reviewable decisions”, which include certain decisions to refuse protection visas. Section 473CB required the Secretary of the Department to give material to the Authority for the purposes of its review, including material that was in the Secretary’s control and that the Secretary considered relevant to the review.
102 The Secretary had provided the Authority with 48 pages of irrelevant material involving “prejudicial opinion, innuendo and tacit suggestion”: CNY17 at [96] (Nettle and Gordon JJ); [110]-[111], [138] (Edelman J). None of it had been provided to the visa applicant: see generally CNY17 at [96] (Nettle and Gordon JJ). The Authority’s reasons disclosed that it had made significant, adverse credibility findings against the visa applicant in reaching the decision that his protection visa application should be refused.
103 The majority (Nettle and Gordon JJ at [51], and Edelman J at [110]) held that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material provided by the Secretary to the Authority. Their Honours considered that the information might have led the Authority to make a decision other than on the legal and factual merits of the case, because it might have led the Authority to the view that the visa applicant was not the sort of person who should be granted a visa or not a person who should be believed, even if the view was formed on a subconscious rather than conscious level: CNY17 at [51], [92], [97] (Nettle and Gordon JJ); [111], [140], [142] (Edelman J). The risk of unconscious bias was such that it could not be cured by putting the information aside: CNY17 at [97] (Nettle and Gordon JJ).
104 It is convenient to note at this point that Kiefel CJ and Gageler J disagreed with the majority, concluding that the hypothetical fair-minded observer would understand that the Departmental information could have no legitimate bearing on the Authority’s review, and that the observer would not regard the information as so shocking as to give rise to the realistic possibility that knowing it would affect the subconscious mind of the Authority to the detriment of the visa applicant: CNY17 at [41], [43].
105 The facts relevant to the majority’s assessment included the fact that the prejudice likely to arise from the impugned information was substantial; the Secretary was required to give the Authority any material the Secretary considered relevant to the review, and the Authority was required to consider that material (s 473DB(1)); in a letter to the visa applicant the Authority stated that it would make its decision on the basis of the material provided by the Department; the Authority’s reasons stated that it had considered all the material provided to it; and the Authority did not expressly state that it had put aside the irrelevant and prejudicial information: see CNY17 at [94], [96], [98], and [99] (Nettle and Gordon JJ); and [110]–[111] (Edelman J).
106 In their joint reasons, Nettle and Gordon JJ observed (at [69]) that the question of apprehended bias can be, and often is, considered before the decision is made and that, in the case before them, an objection on the basis of apprehended bias could have been raised as soon as the Authority was given the impugned information. Their Honours considered it relevant that the Authority did not expressly state that the prejudicial material had been put to one side and did not reveal the prejudicial information to the applicant: CNY17 at [99], [100]. In concluding that the relevant facts and circumstances gave rise to apprehended bias, Edelman J also placed reliance on the fact that “[n]owhere in its reasons did the Authority suggest that any of the material provided by the Secretary was not relevant or that weight had not been placed on any of the material provided by the Secretary”: CNY17 at [141].
107 In the recent case of FSG17, the appellant’s primary contention was that the decision not to grant him a safe haven visa, which, as in CNY17, had been made by the Authority under Part 7AA of the Migration Act, should be set aside for jurisdictional error in the form of apprehended bias. In that case too, the Secretary had provided material to the Authority under s 473CB(1). This material included a document titled “Court Attendance Notice”, indicating that the visa applicant had been charged with persistent sexual abuse of a child: FSG17 at [14]. A Full Court of this Court (Bromberg, Davies and O’Bryan JJ) found, at [16], that the Authority had “read the Court Attendance Notice, as it was required to do, because it expressly referred to it in its reasons (while stating that it would disregard it)”. As the Court noted, at [30], a difference between the facts and circumstances in CNY17 and FSG17 was that in CNY17, the Authority did not refer to the departmental documents and had not expressly disavowed reliance on them.
108 The Full Court accepted, at [38], that the information in the Court Attendance Notice contained information of a highly prejudicial kind, “because it involves sexual offending against a vulnerable person, a young girl who is a ward of the State, over a lengthy period of time”. The Court added:
While recognising that the information involves an allegation only and the appellant is entitled to a presumption of innocence, in our view a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to its decision by reason of being informed of the information. The observer might consider that the individual decision-maker might consciously or subconsciously form an adverse view of the appellant’s character, inclining the decision-maker to the view that the appellant is not a person to whom the benefits of a visa should be extended.
109 The Full Court further accepted, at [39], that “[i]n its reasons for decision, the Authority identified the prejudicial information, cogently explained why the information was irrelevant to the decision and stated that the Authority would disregard the information in making its decision”. Nonetheless, emphasising that the issue was one of apprehended, not actual, bias the Full Court surmised that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of mind: FSG17 at [41]. The Court concluded at [42]:
In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.
Accordingly, the Court held that the appellant had made out his claim of jurisdictional error for apprehended bias.
110 There are, plainly enough, some salient differences between this case and the cases discussed above. This case, unlike CNY17 and FSG17, concerns a decision made by the Tribunal under Part 7 of the Migration Act, and not, as in CNY17 and FSG17, a decision made by the Authority under Part 7AA. Under the applicable provisions in Part 7AA, the Secretary must not only give any material in the Secretary’s control to the Authority that the Secretary considered relevant to the review, but also the Authority is required to have regard to all that material. The reasons of the Tribunal in this case do not refer to the impugned information, either directly or by implication, although, unlike FSG17, there is no statement to the effect that the decision-maker considered the impugned information to be irrelevant to the issues arising on review. The specific nature and the volume of the impugned information, and the facts and circumstances that led to the impugned decision, were, moreover, different in each of the discussed cases from this case.
111 The differences have, however, limited relevance to the ultimate question of fact that falls for decision: whether in this case a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to its decision, by reason of the information in the Job Details Report. The facts and circumstances that bear on this decision are referable to the knowledge attributable to the hypothetical fair-minded lay observer in the circumstances of this case.
112 The first matter concerns the key aspects of the statutory framework governing the Tribunal’s decision-making under Part 7 since the fair-minded lay observer is attributed with knowledge of such matters. The fair-minded lay observer is therefore presumed to know that the Secretary is only required to provide documents in the Secretary’s possession or control “considered by the Secretary to be relevant to the review of the decision”: see s 418(3). This observer would also be presumed to know that, as part of its regular administration of the Migration Act, the Tribunal would also be aware of that fact. The fair-minded lay observer would also be presumed to know that the Tribunal would ordinarily treat the Secretary’s notification that s 438(1)(b) applies to information as sufficient for the Tribunal’s purposes. Equally, such an observer would be presumed to know that the Tribunal would have read the Job Details Report to which the notification apparently attached in order to consider the exercise of its discretion under s 438(3)(a), although in this case it would be accepted that, having done so, the Tribunal consciously chose not to have regard to the notified information in reaching its decision. In summary, the fair-minded lay observer can be taken to know that when the Tribunal received the Job Details Report, it was aware the Secretary regarded the Report as “relevant” to its review, and that it would have read the Report to determine whether it should exercise its discretion to have regard to the information in it in reaching its decision on review but that it determined against an affirmative exercise of that discretion.
113 The fair-minded lay observer would also be taken to know that the Tribunal on review was required to consider whether the delegate’s decision to refuse the applicant a protection visa was the correct or preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [34]–[38] (Kirby J), [98]-[99] (Hayne and Heydon JJ), [141]–[142] (Kiefel J). Such an observer would also be taken to know that the Tribunal’s assessment of the applicant’s protection claims depended at least in part on whether the Tribunal accepted his claims about his involvement with Mr Mousavi and the Green Movement at the time of the 2009 Iranian election and protests, his subsequent detention and torture, and his illegal departure from Iran on a false passport. The fair-minded lay observer would be taken to know that, bearing in mind the applicant’s claims, whether the Tribunal accepted them would likely turn on the Tribunal assessment of his credibility, having regard to his evidence and other less tangible matters.
114 Having regard to the nature of the Tribunal’s decision, the fair-minded lay observer would also have appreciated that the information in the Job Details Report could have no bearing on the substantive issues falling for the Tribunal’s determination, including whether there was a real chance that he would be seriously harmed if returned to Iran on account of his political opinion or some other Convention reason, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there was a real risk that he would suffer significant harm for the reasons he claimed: see Migration Act, s 36(2).
115 A fair-minded lay observer would have understood, however, that the information in the Job Details Report was not merely extraneous, it was highly prejudicial to the applicant before the Tribunal. The Report affirmed more than once that the first respondent was the subject of an intervention order for “threatening, stalking [and] harassing a female minor” and her family. The Report also stated, authoritatively, that there was “substantial evidence…available to support integrity concerns” respecting the applicant. Further, in this context, the Report’s reference to the applicant as a person of interest as a witness in a people smuggling investigation conducted by the Australian Federal Police tended to reinforce the unfavourable impression the Report presents of his character and credit. At the same time, the fair-minded observer would have been aware that the Tribunal made an unfavourable assessment of the applicant’s credit, chiefly relying on inconsistencies in his evidence, and that, the Tribunal’s reasons indicated that its unfavourable view of his credit was important in reaching its decision to affirm the delegate’s decision.
116 In the circumstances of this case, by reason of the information in the Job Details Report, the fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision. The fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information in the Report in making its decision on review, particularly its unfavourable credit assessment. It is no answer in the present case to observe that it may be inferred that the Tribunal consciously determined not to have regard to this information for the purpose of merits review because the Tribunal did not affirmatively exercise its discretion under s 438(3) to have regard to the information. It would be plain enough to the fair-minded lay observer that the only ‘relevance’ of the notified information was to show that the visa applicant was not the sort of person who should be granted a visa or the sort of person who should be believed. Since the issue is one of apprehended bias, rather than actual bias, the focus is on the effect of this prejudicial information on the subconscious, rather than the conscious, mind.
117 One may accept, as Kiefel CJ and Gageler J said, in CNY17 at [19], that:
The purpose of combining the “fair-mindedness” of the hypothetical lay observer with the “reasonableness” of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the [decision-maker] falls to be determined from the perspective of a member of the public who is “neither complacent nor unduly sensitive or suspicious”. Together they emphasise that “the confidence with which the [decision-maker] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably – and not fancifully – entertained by responsible minds”.
118 In the present case, however, while acknowledging that the information in the Job Details Report was in the nature of innuendos and generally unfavourable comment, it was nonetheless information that a decision-maker might find difficult to put out of his or her mind. In other words, a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal’s approach to the decision, notwithstanding that it consciously did not have regard to the information. The touchstone for apprehended bias is not the judicial observer but the experience of the reasonably informed and fair minded lay observer, who might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it.
119 The first respondent therefore succeeds on his notice of contention. It is unnecessary to consider the other bases on which the first respondent sought to support the judgment and orders of the primary judge.
Disposition
120 For the reasons stated, the Minister’s appeal should be allowed. The amended notice of contention also succeeds. The result is that the judgment and orders of the learned primary judge are undisturbed.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Kenny, Bromberg and Anderson. |
Associate:
