Federal Court of Australia

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the proceeding, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J

1    In July 2018 the first respondent (Minister) cancelled a visa under which the applicant was living in Australia. The cancellation was mandatory under s 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test, as he had a substantial criminal record and was in prison on a full time basis for offences against the law of Western Australia. The offences which had resulted in the applicant's imprisonment were three counts of indecently dealing with a child who was a lineal or de facto relative, namely one of his two stepdaughters, who was 15 years old at the time of the offence. At the trial of those offences the applicant had also been acquitted of one count of a sexual offence against his other stepdaughter, who was under the age of 13 years at the time of the alleged offence. The applicant made representations to the Minister, as he was entitled to do, as to 'another reason' why the cancellation of the visa should be revoked under s 501CA(4). A delegate of the Minister declined to revoke the cancellation and the Administrative Appeals Tribunal affirmed that decision.

2    The applicant applies for judicial review of the Tribunal's decision on three grounds. The first ground is that the Tribunal failed to take into account the likely effect of separation from the applicant on his biological son, who is a minor child. The second and third grounds both concern the acquittal. Material relating to the charge of which the applicant had been acquitted was before the Tribunal. The applicant contends that this material was irrelevant and prejudicial. Therefore, he alleges by his second ground, regardless of whether the Tribunal had regard to the material, the fact that it was before the Tribunal gave rise to a reasonable apprehension of bias against him. By the third ground, the applicant alleges that the Tribunal erred because it did in fact take the irrelevant material into account.

3    For the following reasons, the submission that the Tribunal did not take into account the effect of separation from the applicant on his son is contradicted by the reasons of the Tribunal, so the first ground will be dismissed. The premise on which the second and third grounds are based - that material concerning the charge of which the applicant was acquitted should have been excluded from consideration - is not made out, so those grounds too will be dismissed. In any event, the Tribunal did not take the material into account as alleged in the third ground. The application will be dismissed.

The offences and the material before the Tribunal relevant to the present application

4    As indicated already, the applicant was charged on indictment with four offences, one of which was alleged to have been committed against one stepdaughter, whom I will give the pseudonym Mary, and the other three of which were alleged to have been committed against his other stepdaughter, whom I will call Joanne. The alleged offence against Mary was said to have been committed against her at a time unknown in 2010 or 2011. The three offences against Joanne were all committed on the same occasion, on 3 April 2017. Those three offences, of which the applicant was convicted, were sufficiently serious to attract sentences of 12 months, 8 months, and 12 months respectively, which were ordered to be served concurrently meaning a sentence of a total of 12 months' imprisonment with eligibility for parole.

5    When the review of the applicant's revocation request came before the Tribunal, a summons to produce documents was issued to the Western Australian Commissioner of Police. The summons was issued on the application of the Minister. It required production of all documents relating to the three counts of which the applicant was convicted. It did not mention the other count that had resulted in an acquittal. But in response, the police produced the brief for all four counts, which included a statement of material facts in relation to the alleged offence against Mary, as well as a witness statement from Mary and witness statement by a friend of the applicant's wife. It is not necessary to describe the content of the statement of material facts or the witness statements. It is sufficient to say that it is likely that if their contents had been read and believed by the Tribunal, the Tribunal would have concluded that the applicant had engaged in serious conduct involving the sexual assault of a child.

6    The Department of Justice and the District Court of Western Australia also produced material on summons for the purposes of the Tribunal hearing. The material produced by the Department of Justice included a parole review report which incorrectly included a description of the charge of which the applicant was acquitted as among the offences for which he was at that time serving a term of imprisonment. But the wording of the description is the same as the wording in the statement of material facts I have already mentioned, so it does not add anything to the material. The District Court produced the trial judge's sentencing remarks. It also produced the indictment which described, in the concise form appropriate to a charge, the allegation of which the applicant had been acquitted, along with the three allegations of which he had been convicted. I will refer to the material produced on these three summonses, in so far as it concerned allegations about the applicant's conduct towards Mary, as the contentious material.

The course of the proceeding before the Tribunal

7    The applicant's statement of facts, issues and contentions to the Tribunal (SOFIC) mentioned the three convictions and the fact of the acquittal. The SOFIC acknowledged that the three offences were serious but for various reasons submitted that the applicant presented a low risk of reoffending. A statement by the applicant made to the Tribunal was before the Tribunal, in which he said that he was ashamed of the offences he committed against Joanne and that he had never done anything else like that to her or to Mary. The SOFIC raised the best interests of the applicant's then 4-year-old son as a primary consideration.

8    The Minister's SOFIC relied on the convictions as very serious but did not refer to the charge of which the applicant was acquitted, or any other conduct of a criminal nature that had not been the subject of a conviction.

9    It is relevant to ground 1 that in a reply SOFIC, in relation to the primary consideration of the best interests of the applicant's son, the applicant's solicitors extracted a number of paragraphs from academic articles and similar materials which were summarised as 'a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents had on a young child'. This was presented in response to a submission from the Minister that the weight to be given to that factor should be reduced since the child's grandparents were playing a parental role in his life. The point the applicant's reply SOFIC made was that even though the grandparents were caring for him, separation from his father, the applicant, would be harmful to the child.

10    At the hearing before the Tribunal, the solicitor representing the Minister included in her cross-examination of the applicant questions that were based on the material that was obtained on summons from the police. The questions included a question as to whether the applicant had given Mary a shot of Sambuca liqueur on the day before his wedding to her mother (in 2010, when Mary must have been 10 or 11). The applicant denied this. Another question referred to a claim that both Mary and Joanne said that the applicant was physically abusive when he was disciplining them. He also denied that. A little later, the cross-examiner referred to 'some of the stuff in the police material that I need to tell you about, for fairness'. This included questions about conduct which was capable of supporting an imputation that the applicant had behaved in an inappropriately sexualised way towards Mary and Joanne and had seen them in the shower naked. The applicant denied those imputations. Later still, the cross-examiner referred to the allegation of sexual assault against Mary. When the applicant denied that, the cross-examiner said, 'You were acquitted of that and so, we don't say to you that you did that, but I'm asking why you've said this to [Joanne], that why you said to [Joanne] that her sister might have been used by her father for sex'. That the applicant had said that to Joanne was a fact found by the sentencing judge to have occurred.

11    In closing submissions before the Tribunal, the solicitor for the Minister made the following oral submissions:

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

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

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

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

12    A little later the solicitor for the Minister submitted that 'in terms of the likelihood of reoffending, I think we have six things that the Minister says provide a logical and probative basis which should inform the tribunal's assessment'. One of those things was as follows:

So fourth in regards to the risk, there was both oral evidence given by the applicant today as well as the separate statements by [Joanne] and [Mary] that are in the documents, which of course the tribunal can give what weight it chooses to but the Minister says those are statements to police and should be given some weight even though they are not here today.

The oral evidence given by the applicant today suggests some - or the Minister says should give rise to some concern that the applicant has acted in inappropriate way with either one or both of his daughters and particularly that his comment that it was normal for him to just wear boxer shorts and no shirt around the house at the time, and he didn't really seem to resile on that or reflect any - there was no real recognition - the applicant had in part recognised that some of his responses to what his daughters were like to him at the time was inappropriate.

But there was no evidence from the applicant about what he has done or how he understands parenting of teenage daughters to currently look like. The Minister says there is this sense of inappropriate conduct in the house around that time. And in that light, the separate statements by [Joanne] and [Mary] about the physical abuse, so they both separately reported the applicant engaging in sort of physical discipline. He agreed that he was, you know, disciplining them but not in a physical way.

But the Minister says the statements of [Joanne] and [Mary] should be accepted in that regard. As well as the cuddling in the bed, the applicant did say that it was just for a few minutes that they would ever cuddle as a family and the walking in on the shower that's described in [Joanne's] statement, that the applicant did on two occasions. The Minister says there is enough before the tribunal to find that there is inappropriate behaviour by the applicant in the past and that there is no clear evidence as to how he had understood or rehabilitated in terms of his parenting styles. Particularly parenting of now older girls.

The reasons of the Tribunal

13    For the purposes of the present application, it is necessary to describe selected aspects of the reasons of the Tribunal.

14    At the outset, the Tribunal recorded that it had admitted various documents into evidence. These included the contentious material produced by the Western Australian Police, the Department of Justice and the District Court, which I have described, although the Tribunal only referred to them compendiously as 'Respondent's Supplementary Relevant Documents including documents produced on summons, filed 9 May 2019'.

15    The Tribunal set out the applicant's criminal record, which was comprised of the three convictions for indecent dealing as well as a relatively minor conviction for damaging property.

16    The Tribunal noted that the interests of the applicant's son comprised the primary reason advanced as to why the cancellation of the applicant's visa should be revoked. It correctly recorded the submission in the applicant's first SOFIC that there was no evidence that he was at risk of offending again 'except in matters relating to stepchildren'. It also recorded the submissions made about the best interests of his son. It recorded a submission that the offences against Joanne, while serious, were an isolated incident.

17    When it came to make findings about the applicant's criminal conduct, the Tribunal noted the property damage conviction and the three indecent dealing convictions and said (at para 53), '[o]ther than these two sets of offences, there is no evidence of the Applicant having committed any other offences in Australia or elsewhere'.

18    The Tribunal considered the circumstances of the three offences against Joanne in detail, including by reference to the sentencing remarks of the trial judge. The Tribunal set out (at para 55) the following passage from the sentencing remarks: 'I'm satisfied beyond a reasonable doubt that these offences are an isolated incident of offending against this child [Joanne]. On her own evidence you've never done anything sexual to her before'. This passage was quoted separately to the longer quotes of other parts of the sentencing remarks, in a way which gave it some emphasis.

19    Later (at para 73) the Tribunal said:

The three serious offences for which the Applicant has been convicted occurred on a single date. The other offence for which he was convicted is more than a year earlier. The Tribunal considers that the Applicant is not a repeat offender and there is no trend of increasing seriousness in his offending.

20    The Tribunal's finding by way of conclusion in relation to the nature and seriousness of the applicant's conduct was (at para 80):

Having regard to all the evidence including the circumstances of the Applicant's conduct and offending, the Tribunal finds that the Applicant has committed sexual offences against a child with whom he had a familial relationship. The Tribunal finds that the nature of the Applicant's offending is very serious and weighs against exercising the discretion to revoke the cancellation of the visa.

21    In relation to the risk of reoffending the Tribunal said (at para 108) it had formed the view that:

there was a low risk of the Applicant reoffending against the victim particularly given the different circumstances in which both the victim and the Applicant now find themselves concluding that the Applicant is no longer in a position of trust regarding the victim.

22    The Tribunal then referred to the risk of offending against the applicant's stepchildren and noted that the applicant had offended against 'a minor' and that there remained a risk that 'he may similarly offend against other minors should the opportunity present itself'.

23    In a later part of its reasons, dealing with the interests of the applicant's son, the Tribunal said in effect that at the time of the hearing, Mary was over 18 and that Joanne, whom it referred to as 'the victim of his offences', was about to turn 18. Later still, in considering strength, nature and duration of ties to Australia, it noted (at para 201) a remark of the sentencing judge that 'apart from the serious offences for which he was convicted in 2018 he has lead a "blameless life" while in Australia'.

24    In relation to the best interests of the applicant's son, the Tribunal referred to these as comprising the applicant's central submission on the revocation application. Then (at para 124) it said (italics in original):

The Applicant drew the Tribunal's attention to a range of research work demonstrating 'the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child' (A2, paragraphs 33-35a). This research suggests that separation from one or both parents at a young age can have significant and far reaching impacts on a child's physical and psychological development. The Tribunal accepts that [sic] the significance of a child having the care and protection of his mother and father, particularly in the early stages of their development.

25    The Tribunal then went on to refer to the age of the applicant's son and supportive statements from others about the applicant's level of involvement with his son. The Tribunal accepted that the applicant and his son had a strong bond and that the applicant had been actively involved in parenting his son before he went to prison. The Tribunal considered the child's recent living arrangements with the applicant's parents in India and the apparent attitude of the child's mother to seeing him. It considered the applicant's testimony about why the child had been sent to India to live with his grandparents. It found that the child was still young and would benefit from a relationship with both parents until he turned 18 and beyond.

26    At para 129 the Tribunal found that 'a permanent separation from his father or mother is likely to have a marked impact on the child'. This was an application of para 13.2(4)(d) of Ministerial Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth), with which the Tribunal was required to comply under s 499(2A) of the Migration Act. That paragraph required the Tribunal to consider, where relevant, '[t]he likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways'. The Tribunal went on to consider how the applicant and his son might maintain contact, including detailed consideration of the possibility of the child visiting India, should the applicant return there. The Tribunal accepted that it would be very difficult for the applicant to maintain a meaningful parental relationship with the child if the applicant returned to India and the mother chose to remain with the child in Australia. But the Tribunal did not treat those living arrangements as a foregone conclusion, and also considered whether the mother and the child might relocate to India along with the applicant.

27    The Tribunal also considered the other factors made mandatory by para 13.2(4) of Direction 79, noting worry and stress the child had experienced and his treatment for low mood in India. The Tribunal said it accepted that the child's separation from his parents while living in India with his grandparents had understandably been unsettling for him and that this was compounded by being in the relatively unfamiliar environment of India. There was further consideration of the child's living arrangements and the mother's plans.

28    The Tribunal's conclusion about the best interests of the child (at paras 140-142) was:

In the Tribunal's view revocation would afford the child the best opportunity of enjoying an ongoing relationship with both his mother and father while enjoying the benefits afforded to him as a citizen residing in Australia. However, the Tribunal acknowledges that it is unclear on the evidence that revocation will necessarily result in the child enjoying a relationship with his mother and may still result in him living in India should his father be unable to care for him in Australia on his own. Conversely, non-revocation may result in the child living in India with one or both parents or living in Australia with only one parent, his mother.

Taking into consideration the above discussion of the factors in clause 13.2(4) of Direction no. 79 and notwithstanding some of the Tribunal's reservations expressed in this discussion, on balance, the best interests of [sic] is likely to be served by the revocation of the cancellation of the Applicant's visa.

In the Tribunal's view this consideration weighs heavily in favour of the revocation of the cancellation of the visa.

29    Later, in connection with strength, nature and duration of ties to Australia, the Tribunal said (at para 206):

whilst it appears on the evidence that he may be currently estranged from his wife the Tribunal accepts that non-revocation would have a significant impact on her and her son regardless of whether the child leaves with the Applicant to live in India, remains in Australia to be cared for by his mother, travels with his mother to live in India with both parents, or some combination of these arrangements.

30    The Tribunal said at this point that it placed particular weight on the impact of revocation on the child and the applicant's wife. The Tribunal also returned to the subject of the best interests of the child in its conclusion at the end of its reasons, where it expressed further concerns about the possible impact of non-revocation on the child in the specific context of uncertainty about whether the child would need to move to India to be with his father.

Ground 1 - consideration of the impact of separation on the applicant's son

31    By ground of review 1, the applicant asserts that the Tribunal failed to consider the likely effect of separation on the applicant's child, as it was required to do under para 13.2(4)(d) of Direction 79. His specific complaint is that the Tribunal 'merely made a finding that "a permanent separation from his mother or father is likely to have a marked impact on the child"' and did not 'take into account submissions regarding the detrimental physical, emotional and psychological impact that separation between the Applicant and his child would be likely to have'.

32    This ground is untenable. The specific contention that the Tribunal did not take into account submissions regarding the detrimental impact of separation on the child is belied by para 124 of the Tribunal's reasons, which is reproduced at [24] above. That paragraph shows that the Tribunal not only referred to the specific submission, but engaged with it intellectually, both by summarising its import and accepting its significance.

33    Once that contention fails, the submission that the later expression by the Tribunal of a conclusion that separation would have a marked impact on the child somehow shows an omission to take the likely effect of separation into account must also fail. It is, perhaps, possible that in some contexts, if that were all the Tribunal had said about the factor, that would indicate an insufficient level of intellectual engagement with it. But it was not all the Tribunal said here. As I have indicated, the Tribunal expressly considered, engaged with, and accepted the significant impact that separation from the applicant would have on his son. It did so in reliance on the very submissions about the detrimental physical, emotional and psychological impact of separation which counsel said the Tribunal did not take into account, namely the submissions based on the academic material I have referred to above. The Tribunal did not, as was submitted, 'merely' refer to 'marked impact'; it summarised without demur the research as suggesting 'that separation from one or both parents at a young age can have significant and far reaching impacts on a child's physical and psychological development' and it accepted, in terms, 'the significance of a child having the care and protection of his mother and father, particularly in the early stages of their development'.

34    While that was expressed in general terms in para 124 (it was, after all, summarising general research material), the rest of the Tribunal's reasons show that the Tribunal applied its finding about that to the particular circumstances of the child. It considered the bond between the applicant and his son, the benefit to the son of having a relationship with both parents, and the difficulties they would experience in maintaining contact if they were separated. The last of these was expressly required to be considered, where relevant, as part of the consideration made mandatory by para 13.2(4)(d) of Direction 79. The Tribunal also devoted considerable space in its reasons to the question of whether relocation of the applicant to India would indeed result in him being separated from his son. While that was not the precise matter which para 13.2(4)(d) required to be taken into account, it showed serious consideration of the broader issue of the likely impact of revocation on the relationship between the applicant and his son, and the resulting effect on his son, of which para 13.2(4)(d) was an aspect.

35    This was all said in the context of the detailed and conscientious consideration of the best interests of the child, in light of a number of relevant factors, which the Tribunal undertook as a whole, which I have described above. Ground of review 1 should not have been advanced. I do not uphold it.

Ground of review 2 - reasonable apprehension of bias

36    Both ground 2 and ground 3 concern the contentious material about the charge of an offence against Mary, of which the applicant was acquitted at the same trial where he was convicted of the three offences against Joanne.

37    By ground 2, the applicant contends that the contentious material went behind and impugned the acquittal. He contends that a reasonable bystander would apprehend that the Tribunal's analysis of the future risk of offending may have been prejudiced by looking at alleged conduct against his other stepdaughter, for which he was not convicted. The reasonable bystander might think the Tribunal would think the risk of reoffending was higher, because the applicant had done the same thing to another victim. This is said to result in jurisdictional error because the Tribunal's decision was affected by a reasonable apprehension of bias.

38    It is not abundantly clear whether this ground requires a finding that the Tribunal actually did consider the evidence about the charge concerning Mary. Particulars to the ground say that the Minister's representative at the Tribunal hearing took the Tribunal to the contentious material and made submissions about it, and that the Tribunal said that it had taken into account all the evidence before it. But I understand these matters to be advanced as more reasons why a reasonable independent observer might apprehend bias, rather than contentions about the Tribunal's decision making process in fact. That process is the subject of ground 3, by which the applicant asserts that the Tribunal did take that evidence into account, and thereby took into account an irrelevant consideration.

Reasonable apprehension of bias and extraneous material

39    Ground 2 articulates a basis for a finding of reasonable apprehension of bias which recently found favour with a majority in the High Court in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 375 ALR 47. In that case, Nettle, Gordon and Edelman JJ (Kiefel CJ and Gageler J dissenting) held that because certain irrelevant and prejudicial material was put before the Immigration Assessment Authority, that gave rise to a reasonable apprehension of bias and so to jurisdictional error (for Edelman J, the reasonable apprehension of bias was not itself the jurisdictional error, but rather went to whether a different error on the part of the Secretary of the Department was jurisdictional, but nothing turns on that distinction for present circumstances: see CNY17 at [109]).

40    The material which became contentious in CNY17 had been sent to the Authority by the Secretary of the Department, purportedly in fulfilment of the Secretary's statutory obligation to give to the Authority material considered by the Secretary to be relevant to the review that the Authority was to undertake. The review in question was a review of a decision of a delegate of the Minister to refuse to grant a protection visa. The material was comprised of departmental documents which, broadly speaking, tended to suggest that the applicant in question had a 'history of aggressive and/or challenging behaviour' when engaging with the Department, had been involved in many 'incidents' in detention, had potentially been part of a 'riot' at an immigration detention centre, and might have given rise to national security concerns: see [81], [96] (Nettle and Gordon JJ).

41    Nettle and Gordon JJ found (at [96]) that there was 'a risk that such information would lead a decision-maker in the place of the IAA to have a bias against the appellant, possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community'. Edelman J found (at [138]) that the material was 'qualitatively and quantitatively significantly prejudicial to the assessment of the appellant's character on grounds other than legal grounds'. So, applying the established test for apprehended bias articulated by the High Court in cases such as Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, the majority found that a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the question it was required to decide: see [56]-[59] (Nettle and Gordon JJ), [132]-[136] (Edelman J). Kiefel CJ and Gageler J did not differ from the majority in their statements of principle; their Honours dissented in the application of the principles to the facts: see [17]-[21] for their Honours' statement of the principles and [40]-[43] for the application of the principles.

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

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

44    Findings to that effect were necessary if there was to be a conclusion of reasonable apprehension of bias on the facts of CNY17, both because of the nature of the injustice that is anticipated to arise from bias, and because of the particular way in which the bias was said to arise in that case. The injustice can be described as the review being decided 'otherwise than on an independent and impartial evaluation of the merits' (Kiefel CJ and Gageler J at [21]) or making 'a decision otherwise than on the legal and factual merits of the case' (Nettle and Gordon JJ at [51] and see [57]). 'The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits': at [69] (Nettle and Gordon JJ) (emphasis in original). These formulations are all based on the statement of principle found in Ebner at [8].

45    The particular way in which the injustice was perceived to arise in CNY17 was consistent with that statement of principle. It had been described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74 as 'disqualification by extraneous information', consisting of 'cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias': see CNY17 at [57], [92], [134]. So, in CNY17, the question was whether the irrelevant material, being also prejudicial, would mean that 'the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits': at [70].

46    It was therefore essential to the conclusion in CNY17 that the prejudicial material was irrelevant. In Webb, which related to a criminal trial, Deane J used the word 'inadmissible'. But it would be a mistake to take rules of evidence from that context and apply them to the different fact finding function of an administrative decision-maker such as the Authority. An administrative decision-maker is usually entitled to take into account material which would not count as evidence in a judicial context (L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA)), and that was so for the Tribunal here: see Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). As Colvin J put it in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 168 ALD 1 at [184]-[185] (citations removed):

… it is important to bear in mind that an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court. So, using the present circumstances as an example, the High Court has cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making by the Administrative Appeals Tribunal under the Migration Act 1958 (Cth). In the Tribunal, evidence is simply the material before the Tribunal, however received. Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason …

Facts can be fairly found by administrative decision-makers without demanding adherence to the rules of evidence. The fact that material may be inadmissible according to the laws of evidence does not mean that it cannot be received by an administrative tribunal. It is relevance that determines whether the material is to be considered.

Was the contentious material about the alleged offence against Mary irrelevant?

47    In the course of submissions it appeared that there were two different ways in which the applicant argued that the Tribunal was obliged not to take the contentious material into account in the review. One way was that the material was not logically probative of any matter which the Tribunal had to determine. The second way was that the fact of the acquittal meant that the Tribunal could not receive material tending to prove that the applicant was guilty of the offence of which he was acquitted. That appeared to have been advanced on grounds of public policy or perhaps in reliance on what was said to be a separation of proper functions between the criminal justice system and an administrative review.

48    Turning to the first of these, the relevance of the contentious material, Direction 79 makes the risk of an applicant reoffending a necessary part of the Tribunal's assessment of the primary consideration of the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(1) of the direction explains the principle underlying this part of Direction 79 as follows:

When considering protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens ...

49    Paragraph 13.1(2) of the direction provides:

Decision-makers should also give consideration to:

a)    The nature and seriousness of the non-citizen's conduct to date; and

b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

50    Sub-paragraph (a) makes a general reference to conduct. That is not expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence. Probative evidence that a non-citizen has engaged in serious conduct in the past is evidence about the 'nature and seriousness of the non-citizen's conduct to date' and is capable of rationally affecting assessment of the probability that the non-citizen will 'commit further offences or engage in other serious conduct' in the future. In view of the matters that Direction 79 required the Tribunal to consider, material such as Mary's witness statement was probative.

51    That the contentious material here was relevant to the Tribunal's statutory task is confirmed by Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565. The Minister had exercised a discretion to cancel Mr Ngaronoa's visa because he did not pass the character test and had a substantial criminal record consisting of a prison sentence for 4½ years for serious assaults. In exercising the discretion, the Minister had regard to five charges that had been brought against Mr Ngaronoa, where he had been found guilty by a court of two of the charges but not guilty in relation to the other three. The Minister took into account information relating to all of the charges. Of the information, the Minister said in his reasons for decision, 'I thought it unlikely that it was wrong in every regard. I did not accept that the finding of not guilty on three charges meant that some elements of the assault described did not in fact occur'. The Minister found that one of the aspects of the alleged assaults was particularly serious and gave it considerable weight in this decision.

52    Mr Ngaronoa applied to the Federal Court for judicial review of the Minister's decision. The gravamen of his complaint was that on a proper construction of s 501 of the Act, the Minister was precluded from taking into account allegations of criminal conduct as to which a person had been acquitted. This was said to be taking into account an irrelevant consideration: at [47].

53    Jacobson J held that the Minister was not precluded from having regard to conduct in respect of which charges were laid on which Mr Ngaronoa was acquitted: at [51]. Section 501 was not confined to prohibiting the presence in Australia of persons who had been convicted of criminal conduct. For example, s 501(6)(c) provides that a person can fail the character test having regard to 'the person's past and present criminal conduct' and 'the person's past and present general conduct'. Ministerial Direction No 21 - Visa refusal and cancellation under s 501 (Cth) (a predecessor to Direction 79) also referred to the Minister's responsibility to protect the community from 'other reprehensible conduct'. His Honour concluded:

[56]    What must be borne in mind is that the present case is concerned with the exercise of the discretion, not the determination that Mr Ngaronoa failed to satisfy the character test. Whilst it would not have been open to the Minister to determine that Mr Ngaronoa had a substantial criminal record on the basis of charges on which he was acquitted, that was not the question which fell for determination: cf. s 501(10).

[57]    Having satisfied himself that Mr Ngaronoa met the precondition, namely failure to satisfy the character test by reason of the term of imprisonment of four years and six months, the question was whether it was open to the Minister to look to conduct engaged in by Mr Ngaronoa in 2006, regardless of whether that conduct was the subject of a criminal conviction.

[58]    In my view, the authorities to which I have referred establish that the Minister was not constrained from having regard to 'general conduct' provided that it pertained to matters affecting the protection of the Australian community. In my opinion, the matter to which the Minister referred did so pertain.

…

[60]    Of course, there will always be a question of what weight the Minister should attach to the evidence. That will be a matter for the Minister, but he or she must not act capriciously.

54    An appeal from Jacobson J's decision was dismissed: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119. While the appeal did not challenge his Honour's conclusions in relation to the ground which is presently relevant, in a joint judgment Bennett and Buchanan JJ (Moore J agreeing) said (at [11]):

As to the first ground the primary Judge took the view, correctly, that a failure to prove a criminal charge beyond reasonable doubt did not immunise the conduct from consideration by the Minister in the exercise of a general discretion. The substance and detail of the allegations were put to the appellant. He made no response denying the factual allegations which had been drawn to his attention. The fact that a jury did not convict him of specific charges did not put his conduct beyond legitimate consideration.

55    In SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, Katzmann J applied these observations to a case where a delegate of the Minister had refused a visa application and the Tribunal had affirmed that decision, applying another predecessor to Direction 79 (i.e. Ministerial Direction No 55 - Visa refusal and cancellation under s 501 (Cth)). The material said to be irrelevant in that case was evidence about misconduct by the applicant in immigration detention, which had not resulted in a criminal conviction. Katzmann J said (at [92]):

The applicant's behaviour whilst in immigration detention was not irrelevant to the question of whether he posed a risk to the Australian community if he were to commit further offences or engage in other serious conduct, which is the issue the Tribunal was then considering. The fact that he had not been convicted did not escape the Tribunal. At [33], the Tribunal did not find that the applicant had been convicted of any assault (or any offence for that matter) committed in immigration detention. But the absence of a conviction does not make conduct of this kind immune from consideration: Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119; [2007] FCAFC 196 at [11]. Nor did it matter whether the applicant had been charged. What mattered was whether he was likely to be a risk to the Australian community. The applicant's conduct in immigration detention was plainly not irrelevant to this question.

56    It is true there are procedural and factual differences between these cases and the present case. But I do not consider that they displace the application of the underlying principle, which is articulated in Ngaronoa (Full Court) at [11] and in SZRTN at [92]. One of the purposes of the exercise of the discretions to cancel or refuse a visa under s 501, or to decline to revoke a mandatory cancellation under s 501CA, is the protection of the Australian community from criminal or other serious conduct. That is reflected in the successive directions under s 499 that guide the exercise of those discretions. So the risk that the non-citizen will engage in seriously harmful conduct in the future must be assessed. Material tending to show that the non-citizen has engaged in criminal or inappropriate or otherwise harmful conduct in the past is capable of rationally bearing on the assessment of the probability of criminal or other serious conduct occurring in the future. The fact that a criminal charge relying on certain material has not been proven beyond reasonable doubt does not necessarily mean the material is not probative. That fact may affect the weight to be given to the material, and there may be particular circumstances surrounding the acquittal which compel the conclusion that it should not be taken into account at all (see further discussion below). But an acquittal does not, by itself, render the material irrelevant.

57    That view is consistent with observations that Bennett and Buchanan JJ made later in the appeal decision in Ngaronoa (at [20]-[21]):

No particulars of the charges are available. Each of the last three charges depends on the satisfaction of a number of elements beyond reasonable doubt. It is not known which elements were not established to the satisfaction of the jury, with the result that the appellant was acquitted of these charges. In particular, no suggestion has ever been made by the appellant, in connection with his visa application, that he did not force himself upon Ms H and have sexual intercourse with her, or that she consented to him doing so.

It is clear that the appellant's acquittals were expressly acknowledged in the Issues Paper. However, it is equally clear that the conduct disclosed in the summary of protected information, which was not denied in any way by the appellant, raises a clear case that Ms H was sexually assaulted. We agree with the primary judge that the Minister was not bound to disregard all the facts which led to the charges being brought, notwithstanding that the appellant was acquitted of specific charges as framed …

58    The corollary of their Honours' observations is that it may be possible, by reference to the elements of a charge and the course of the trial, to establish that it follows from the fact of acquittal that particular evidence that was relied on at the trial should not be taken into account, for example because it is apparent that the jury disbelieved it. But the applicant in the present case did not make any submission of that kind by reference to the elements of the charge concerning Mary or the circumstances of the acquittal of that charge. If he had, a further question may have arisen as to whether any error was a jurisdictional error or merely a fact finding error within jurisdiction.

59    The applicant sought to distinguish Ngaronoa on two grounds. The first was said to be that the specific question in Ngaronoa was whether the Minister had breached an obligation of procedural fairness by not putting the material to Mr Ngaronoa before making a decision to cancel the visa. That was the issue on appeal but the discussion of the first instance decision above shows that the issue was not so confined. It extended to deciding whether the fact that the material related to charges that led to acquittal meant that the material was irrelevant. The Full Court specifically approved Jacobson J's view that it was not irrelevant.

60    The second ground of distinction was said to be that the observations of Bennett and Buchanan JJ quoted above do not apply because here the allegations were not put to the applicant. But their Honours' view that the failure to prove a criminal charge beyond reasonable doubt does not immunise the conduct from consideration did not depend on their subsequent observations that the allegations were put to Mr Ngaronoa. The point of those observations was merely to confirm that the material was probative because Mr Ngaronoa did not deny it. It was not to require that the potential use of the material be put to the applicant in all circumstances. The present application is not based on any asserted procedural fairness obligation of that kind. Similarly, their Honours' reference at [20] to the fact that Mr Ngaronoa did not deny the allegations does not identify an essential prerequisite to their conclusion that the Minister could have regard to the facts which led to the charges being brought. The absence of denial merely made the argument for having regard to those facts a stronger one.

61    The applicant formally submitted that if Ngaronoa (Full Court) is not distinguishable, it should not be followed. But as a first instance judge I cannot decline to follow a relevantly indistinguishable judgment of the Full Court. In any event I respectfully consider that the decision, and the relevant parts of the first instance decision and of SZRTN, are correct.

62    Submissions were made on behalf of the applicant concerning cross-examination conducted and submissions made before the Tribunal by the solicitor representing the Minister. I have described those matters at [10]-[12] above. The submission appeared to be that those matters increased the likelihood that there was a reasonable apprehension of bias. I accept that they did, for the simple reason that referring to them in those ways increased the likelihood that the Tribunal would have regard to the contentious material. But I do not consider that these aspects of the conduct of the hearing before the Tribunal take the matter any further. They were simply ways of introducing and relying on the contentious material, and the application still stands or falls on the relevance of that material. The applicant did not bring any ground of review claiming, for example, that the questioning was unfair in a way that led to a denial of procedural fairness.

63    In reply, junior counsel for the applicant made a more specific submission as to why the contentious material was not probative, namely that the material invited 'tendency reasoning'. Counsel relied on Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 and Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 to say that such reasoning is impermissible. But I do not consider that those cases advance his client's position.

64    Hughes concerned the application of s 97(1)(b) of the Evidence Act 1995 (NSW), which concerns tendency evidence, to a question of whether certain evidence should have been admitted in the criminal trial of a man accused of several sexual offences. The Tribunal's review in the present case was not a criminal trial and the Tribunal was not required to comply with the laws of evidence. The passages from Hughes on which the applicant relied were from the reasons of Gageler J (at [70]-[72]) and Nettle J (at [154], [169]). Quite apart from the different context that I have already mentioned, their Honours were addressing a different problem. It was the problem of whether conduct of the accused in the past is logically probative as to whether he did a particular thing on the particular occasion in issue: see Gageler J at [70] (including his Honour's reference to 'postdiction') and Nettle J at [154] ('Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence'). That was not the issue the Tribunal was called on to address; the ultimate issue before it in relation to the first primary consideration was not whether the applicant had done a particular thing on a particular occasion, but whether, if the cancellation of his visa was revoked, he would pose an unacceptable risk to the Australian community. The role of tendency evidence, if that is what it was, in that predictive (not 'postdictive') and risk assessment function was very different. Further, Gageler J and Nettle J were in the minority in Hughes. The majority (Kiefel CJ, Bell, Keane and Edelman JJ) observed at [39]:

The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

65    The issue to be resolved by the Tribunal here was different to the issue in Hughes. I do not consider that the cautions against tendency evidence which Gageler J and Nettle J expressed in a different context mean that the contentious material was not logically probative of the questions facing the Tribunal here.

66    Unlike Hughes, Splendido is a case in the context of administrative decision-making, indeed, decision-making under s 501CA of the Migration Act. But what was held to be impermissible there (Mortimer J, Moshinsky J agreeing) was for the Assistant Minister to rely only on a bare record of past convictions for the purposes of assessing the risk of harm to the Australian community without any regard to the nature and circumstances of offences: see [77]-[80], [82]. Here, if the Tribunal had taken account of the detailed evidence concerning the alleged conduct concerning Mary, it would not have been making an error of that kind.

67    The broader proposition that what occurred in the past can, in appropriate cases, be a reliable guide to the future is a foundational part of administrative decision making under the Migration Act: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575 (a case concerning applications for refugee status). Direction 79 expressly requires that past conduct be taken into account. In my view the character of some of the contentious material as 'tendency evidence' did not mean it was not logically probative as to issues facing the Tribunal.

68    For these reasons, I consider that the contentious material was probative of issues which the Tribunal needed to determine.

Is taking the material into account an error because it is inconsistent with the acquittal?

69    The second way in which the applicant argues that the contentious material should have been excluded from consideration is that it was impermissible for the Tribunal to 'go behind and impugn the acquittal' by taking material about the alleged indecent dealing with Mary into account. The contentious material was said to be 'irrelevant as a matter of law'. Senior counsel for the applicant submitted that '[i]t is for the criminal justice system to determine guilt or innocence and sentence, and not for the administrative system in the Administrative Appeals Tribunal to assess guilt or innocence in relation to criminal acts'.

70    Two observations should be made at the outset. First, it is, with respect, inaccurate to say that the Tribunal is determining 'guilt or innocence and sentence'. The power to impose fines, imprisonment or other punishment consequent on a finding of guilt of a crime is generally the province of the courts and there can be no suggestion that the Tribunal undertook those functions here. Whether the Tribunal can and should determine that conduct of a criminal nature occurred because that is relevant to the inquiry before it is a different matter. For the reasons I have given, it was relevant.

71    Second, while in a court of law an acquittal is a res judicata (Garrett v The Queen (1977) 139 CLR 437 at 445), the applicant here made no submission that this doctrine applied to preclude an administrative decision-maker from considering material that was otherwise relevant to the inquiry before it. The submission was put in broader terms: that the nature of an acquittal as an outcome of the criminal justice process meant that the Tribunal would have erred had it taken into account material that was inconsistent with the acquittal.

72    In HZCP the Full Court gave close attention to the converse of that question. It was the converse because that was a case of an applicant seeking to rely on material that was inconsistent with a conviction and a sentence, not an acquittal. McKerracher and Colvin JJ (Derrington J dissenting) held that this was impermissible, although as will be seen it was important to the majority's conclusion that the conviction in question was the very conviction which meant that HZCP did not pass the character test. As the applicant here relied on HZCP as applicable to a case of acquittal, it is necessary to examine the decision in some detail.

73    In HZCP the appellant had been convicted of grievous bodily harm and unlawful wounding. These convictions led to his imprisonment for more than 12 months and to mandatory cancellation of his visa due to failure to pass the character test. Before the Tribunal, HZCP had denied that the relevant assaults had occurred in the way described by the sentencing judge. He claimed that he had tried to break up a fight and had acted in self-defence. But the Tribunal found that it could not go behind the conviction or examine the facts on which it was based. At first instance in this court and on appeal, HZCP argued that this was wrong because, while as a matter of law the Tribunal 'was not entitled to go behind the conviction', it was entitled to receive evidence contrary to or inconsistent with the evidence on which the conviction was based: see HZCP at [16].

74    McKerracher J (Colvin J agreeing) held that the conviction and sentence were essential facts that underlay the decision-maker's state of satisfaction that the applicant did not pass the character test, which was in turn necessary if the Tribunal was consider whether there was 'another reason' under s 501CA(4)(b)(ii) why the cancellation of the visa should be revoked. McKerracher J considered (at [68]) that it could not have been the legislative intention to permit evidence contrary to essential facts which underlay that state of satisfaction. So evidence going behind and contradicting the conviction or sentence which was the foundation of the jurisdiction could not be allowed.

75    As for evidence challenging other convictions or sentences, that is, ones on which the jurisdiction of the Minister or Tribunal is not based, McKerracher J adopted (at [69]) the following paragraph from Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at [43] (Branson J, citations removed, emphasis by McKerracher J):

… although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based policy considerations suggest that the legislature intended that [the Migration Act], to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)    recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and

(b)    limits inconsistency between decisions of the criminal courts and those of tribunals.

As a consequence, in my view, [the Migration Act] should be construed as requiring a decision-maker under s 200 of [the Migration Act] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

76    However McKerracher J considered that in the case before him, the evidence which the appellant wished to rely on before the Tribunal did seek to impugn the conviction which was the 'foundation or genesis' of the power of the Tribunal under s 501CA(4) to revoke the cancellation for an 'other reason': see [71]. His Honour concluded (at [77]) that it was:

inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker's power.

77    Colvin J agreed with McKerracher J's reasons for dismissing the relevant ground. His Honour added further observations 'concerning the principles to be applied in cases where a party seeks to advance a factual position before an administrative decision-maker that is contrary to the necessary factual foundation upon which a conviction or custodial sentence is based': see [179]. His Honour referred to features of the criminal process which justified a high degree of confidence about the truth of factual matters which found a conviction and sentence: at [180]. It is a serious thing to seek to contradict those matters. In cases engaging the principle on which McKerracher J based his decision, the legislature can be taken to have acted on the basis of confidence in the conviction and will usually be taken not to contemplate that the decision-maker can contradict the necessary factual basis for the power that it is exercising: at [182]. But in other cases, the fact of the conviction or sentence may not form the basis for the power, and it will be possible for the decision-maker to depart from the factual foundation of a conviction or sentence: at [183]. However the high degree of confidence which can be entrusted in the veracity of the facts on which a conviction or sentence is based will make it unlikely that the decision-maker will look behind those matters: at [183].

78    Colvin J then made the observations I have quoted above at [46] above. After considering further matters that bear on how a fact must be established, his Honour returned to the point that '[w]ithin any such fact-finding process, proof of a conviction and sentence carries great weight, not just in proving the fact of the conviction and the nature of the sentence, but also in proving the necessary factual foundation for those matters': at [188]. At [189] his Honour said:

The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts.

79    These considerations explain the passage from Branson J's judgment in Ali that I have quoted at [75] above: see HZCP at [190]. But in Colvin J's view, that was not to say 'that there is some policy consideration that gives a special character to findings that must be taken to underpin a criminal conviction and sentence, but rather to say that the compelling nature of such findings gives them a quality that will be difficult to contradict': at [190]. So (at [191]):

A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose.

80    But those considerations did not apply in HZCP because as McKerracher J had explained, the conviction which the appellant there sought to challenge was the one which founded the sentence which led to the mandatory cancellation of his visa which he was seeking to have revoked: see [191].

81    Derrington J dissented on the basis that, in his Honour's view, there was no principle arising under the Migration Act as it stood in 2019 or more generally under administrative law which precluded the Tribunal from receiving evidence inconsistent with a criminal conviction, even if the conviction was said to be the foundation for the power being exercised. The heart of his Honour's own reasoning on the point is found at [122]-[125], where his Honour said:

[122]    On the one hand, 'whether the conviction is correct' is irrelevant. On the other, 'whether the crime was committed (and, if so, how or in what degree)', is relevant, because it goes to, inter alia, the danger posed to the community by the convicted person. Of course, the answer to the latter question might often suggest (or necessitate) an answer to the former. But it is then a matter of how the inquiry is approached.

[123]    If, because it is relevant to (for example) whether a risk is posed to the community, the Tribunal receives evidence demonstrating that the crime was not committed, that is a relevant consideration. If, alternatively, the Tribunal receives evidence of the transcript of the summing up and takes it into account in finding that the person should not have been convicted, that is an irrelevant consideration. Why? Because the latter does not go to whether the person should be deported. An incorrect summing up does not tend to prove either way that the person should remain in the community or be deported from it - it does not even tend to prove that they are guilty or innocent of the crime for which they have been convicted. But, on the other hand, if evidence goes to the actual criminal conduct (including if it proves that it did not occur or that it occurred in a different way), then it logically affects the question of whether the person should be deported.

[124]    So, if a tribunal hears evidence that conclusively proves that the crime was not committed, that is relevant. But it should stop there. It is not relevant to go on and consider or decide that the conviction must therefore be 'incorrect': it is not relevant because it does not matter. It does not matter because the conviction (at least under the earlier provisions) was the jurisdictional fact enlivening the decision-making power, so was either present or absent regardless of the Tribunal's view, and is not part of and comes before the (then) discretionary choice to be made by the Tribunal (or Minister).

[125]    When understood in that way, the position in [Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354] and [Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250] was orthodox and logical. It did not depend on an (apparently) sui generis 'rule' of administrative law that gives some special significance to criminal processes that is not found elsewhere and has no basis in the legislation.

82    I was not referred to, and have not found, any case before or after HZCP that has considered how the considerations addressed in that decision apply to an acquittal. I consider that the following points arising from the judgments of the majority and the dissentient are relevant. First, the only prohibition against the Tribunal receiving material inconsistent with a conviction which could be described as absolute (or nearly so) applies when the conviction is the basis for the power being exercised by the Tribunal, for example the discretion arising under s 501CA(4)(b)(ii). Second, in relation to other convictions, while there is no absolute rule of that kind, the features of the criminal justice system which make it pre-eminently suited to determining the guilt of persons charged with criminal offences mean that a person seeking to challenge those facts before the Tribunal has a heavy onus to discharge. This is for the simple reason that those features, including the high standard of proof and other safeguards given to the accused, mean that if there is a conviction, there can be a high degree of confidence of the veracity of the facts on which it is based. Third, and following on from the second point, the findings underpinning a criminal conviction have no special character that arises, for example, from any public policy that they are not to be gainsaid. The proper approach to those findings to be taken by an administrative decision-maker is, at bottom, a recognition that it is unlikely that the findings are incorrect. Fourth, the facts which engage the heavy onus are the facts which have necessarily been found in order for the person to have been convicted of the crime or sentenced in the way that he or she has. In sentencing, those facts will appear clearly enough from the remarks of the judge. In the case of conviction by a jury which does not deliver reasons, it may be necessary to make inferences based on the elements of the offence and the particulars of the charge. Fifth, the extent to which the Tribunal may 'look behind' a conviction will depend on the circumstances of the conviction. It may, for example, be easier to persuade the Tribunal that an offence did not occur if the conviction resulted from a guilty plea rather than a contested trial. Sixth, provided that the previous principles are observed, an administrative decision-maker can receive and consider evidence to the effect that a crime of which the non-citizen was convicted was not, in fact, committed. That evidence may be relevant to the exercise of the discretion because it bears on the risk that the non-citizen poses to the Australian community in future.

83    These principles do not bear directly on the extent to which an administrative decision-maker can 'look behind' an acquittal. After all, HZCP did not concern an acquittal, and convictions and acquittals are different. Nevertheless, reflecting on the differences and on the principles above leads me to the following conclusions.

84    An acquittal is not the negative or mirror image of a conviction. That is, it does not necessarily come from any finding beyond reasonable doubt that the offence was not committed. It does not come from any such finding at all. All that can be said in general about an acquittal by a jury, and so without reasons, is that the jury was not satisfied beyond reasonable doubt of one of the elements of the offence. If there are multiple elements, it may not be possible to identify which one was not proved beyond reasonable doubt. See generally R v Storey (1978) 140 CLR 364 at 370-371 (Barwick CJ, in dissent but not on this point) and R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at [31] (Gleeson CJ and Hayne J) and, in the present context, Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 at [29] (Bromberg J). As Gleeson CJ and Hayne J said in Carroll, 'a jury's verdict of acquittal provides no clue to why the jury was not satisfied beyond reasonable doubt of the accused's guilt. For all that is known, the verdict of acquittal may be entirely unrelated to any evidence that the accused gave, or procured to be given, at trial'.

85    Of course, there is no question as to whether an acquittal can be the foundation of the power under s 501CA(3)(b). If a conviction which does not form that foundation does not immunise the facts relied on in support of the charge from consideration by the administrative decision-maker, then it must follow that the facts relied on to support a charge where the accused was acquitted are also not immunised from consideration.

86    But that is not to say that the fact of the acquittal may be disregarded. In some circumstances, it may be appropriate for the decision-maker to place considerable weight on it and so impose, in effect, the same heavy onus on a party seeking to gainsay it as is imposed in the case of a conviction. That may be because, for example, the nature of the charge, the contents of the judge's summing up or any direction to the jury the judge has made or, conceivably, the evidence led at trial, support an inference that the jury or other tribunal of fact positively found that the alleged offence did not occur. In those circumstances, the rigor with which matters must be proved in a criminal trial will lend great weight to that conclusion.

87    But in many other cases, the same rigor will speak against that weight. If the circumstances of the charge, trial and acquittal do not lend themselves to an inference of the kind just described, then it may be that the only conclusion that can be safely reached is that the jury was not satisfied of one or more elements of the charge beyond reasonable doubt. That will not provide a foundation for the administrative decision-maker to make a finding about anything other than the bare fact of the acquittal. In that situation, there is no reason apparent from the Migration Act, Direction 79 or the principles canvassed in HZCP why the administrative decision-maker cannot receive and consider evidence which, if accepted as true, would indicate that the non-citizen did, in fact, commit the offence of which he or she was acquitted. The decision-maker will not be acting beyond power if it considers the evidence and deals with it in an appropriate way.

88    It may be that dealing with it in the appropriate way will require the decision-maker to have regard to the principle articulated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 (citations removed), that:

the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

However that was a principle articulated in the context of a curial proceeding. It is not necessary to determine the extent to which it may apply to an administrative tribunal or whether a failure to observe it would be a jurisdictional error. The applicant's case here did not concern gradations of proof; it was based on the submission that the Tribunal should not have had regard to the contentious material at all. For the reasons I have given, I do not accept that.

89    Some of the submissions made on behalf of the applicant went beyond material that appeared to be relevant to the charge of which he was acquitted. As I have said, there was information in the contentious material suggesting that the applicant may have engaged in other sexualised behaviour or in violent behaviour towards his step daughters. Counsel for the applicant submitted that it was irrelevant to take such behaviour extending beyond the convictions into account because 'by doing so, the AAT is becoming part of the criminal justice process rather than considering future risk of reoffending springing off from a finding of criminal guilt by the criminal justice system'. But for reasons I have explained, the Tribunal was not confined to acting only on findings of that kind. And if the acquittal did not immunise from consideration material relevant to the charge that resulted in a verdict of not guilty, it could not have also precluded the Tribunal from considering other information that was not relevant to that charge.

90    Counsel for the applicant made a specific submission based on a remark of the sentencing judge that her Honour was satisfied beyond reasonable doubt that these offences were an isolated incident of offending against Joanne (see [18] above). To the extent that the contentious material, or submissions made by the Minister in reliance on it, suggested that the applicant had engaged in other inappropriate sexual behaviour against Joanne, that was arguably inconsistent with this remark. I say 'arguably' because it is not abundantly clear whether her Honour is only referring to the criminal offence being isolated, as distinct from other inappropriate but possibly non-criminal conduct. But even if it is accepted that her Honour was referring to the latter, the remark is about Joanne and does not contradict any of the material about Mary. To the extent that the contentious material did relate to Joanne, HZCP confirms that the Tribunal was able to have regard to it, although the Minister would have had a heavy onus to persuade the Tribunal that the applicant had engaged in the conduct. Since, as will be seen, I do not consider the Tribunal took account of any of the contentious material, the question of whether the Tribunal held the Minister to that onus does not arise.

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

Disposition of ground 2

92    It follows from the reasoning above that the contentious material was not irrelevant, in the sense of not being logically probative in relation to any factual issue before the Tribunal. It also follows that there is no other reason to conclude that the Tribunal would have fallen into error if it had taken the material into account. The presence of the material before the Tribunal therefore could not found any reasonable apprehension that the Tribunal might decide the matter otherwise than on its legal and factual merits. So ground 2, as to reasonable apprehension of bias, has not been made out.

Waiver of bias objection

93    The conclusion I have reached that there was no reasonable apprehension of bias makes it strictly unnecessary to resolve a further issue concerning ground 2 which arose during the course of the hearing, namely whether, by failing to make any objection until after the Tribunal gave its decision, the applicant waived reliance on any reasonable apprehension of bias. But it is appropriate to make a few observations on it, as the issue was raised by the court, and the parties were ordered to file written submissions on it.

94    Where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that it does not presently intend to exercise that right, it may be held to have waived the right: Vakauta v Kelly (1989) 167 CLR 568 at 579 (Dawson J). It would be unfair and wrong to give the party who does not object the advantage, by delaying any objection, of an effective choice between accepting a favourable judgment or rejecting an unfavourable one: Vakauta at 572 (Brennan, Deane and Gaudron JJ). However that is not to say that objection must be made immediately; a party may be entitled to a reasonable opportunity to obtain transcript, take advice and consider its options: see John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79 at [25]-[27].

95    Whether these principles apply to a party who is not legally represented need not be considered; the applicant here was legally represented before the Tribunal. But the applicant advanced three reasons why he did not waive the right to object to apprehended bias there. The first was that the facts which supported the objection did not become apparent until the day of the hearing, which was only 10 business days before the mandatory 84 day period for the Tribunal to decide on the review. The second was that he did not have funds to pursue an objection and a further hearing before a different Tribunal. The third was that the application for reconstitution of the Tribunal might have been refused on the basis that the Tribunal could have disavowed any reliance on the contentious material, and the applicant was not to know at the hearing that the Tribunal would not include any such disavowal in its reasons.

96    These submissions were supported by an affidavit of the solicitor who represented the applicant at the hearing. The affidavit deposed to the objective circumstances as to the conduct of the proceeding before the Tribunal and to the applicant's lack of further funds (and, correctly, not to the solicitor's subjective thought processes).

97    I do not consider that the second and third reasons advanced are good reasons to conclude that there was no waiver. In relation to the second basis, lack of funds, it would be inconsistent with the general approach of the law to questions such as waiver to take into account subjective matters uncommunicated to the other party or the Tribunal as negativing waiver. Contrary to a submission made by the applicant I do not accept that John Fairfax v Kriss is authority to the contrary; the passage referred to above concerns what can or cannot be imputed to the relevant party in the context of what was reasonable in the circumstances: see in particular [26]. In relation to the third basis, the relevant facts - that the Tribunal had received the contentious material into evidence - were known to the applicant's solicitor at the time of the hearing at the latest, and it can be expected that if objection had been made, the Tribunal would have indicated promptly whether or not it was going to have any regard to the material.

98    There is, however, merit in the first reason advanced. Under s 500(6L) of the Migration Act, if the Tribunal did not make its decision, relevantly, under s 43 of the Administrative Appeals Tribunal Act within 84 days after the day on which the applicant had been notified of the decision of the delegate, it would be taken to have affirmed the decision. It was common ground that the 84 days expired on 7 June 2019. The hearing was on 24 May 2019 which, as the applicant says, was 10 business days before the expiry of the 84 days.

99    I was not referred to any case directly on point as to how this situation might impact on whether waiver should be imputed to the applicant. I would respectfully follow the account of the underlying principle of waiver for bias offered by Toohey J in Vakauta v Kelly at 588, namely that it is founded on an election between two inconsistent rights. In my view, the proper application of that doctrine requires that the person said to make the election has a free and fair choice between those rights. If, on an objective assessment of the situation, it is apparent that the person has been compelled to take one course and not another, it cannot be said in any meaningful way that the person has elected between them. It was not until the contentious material was tendered and accepted into evidence by the Tribunal that all the facts necessary to support the objection were apparent to the applicant.

100    Here, if the applicant had any choice in the matter, it was an invidious one. If he was indeed faced with an election he was (viewed objectively) required either to forego his right to object, or face the uncertain and very likely impracticable prospect of obtaining a reconstituted Tribunal capable of becoming apprised of, hearing and deciding on his application for review within less than 10 business days. To be clear, it is not the difficulty of that decision which means that there was no waiver. Deciding between incompatible rights will often be difficult. It is the added element of compulsion arising from the inviolable time limit in s 500(6L) which, in my view, meant that a true election should not be imputed to the applicant here. I do not consider that by his silence before the expiry of that time limit the applicant waived his right to raise ground 2.

Ground 3 - whether the contentious material was taken into account

101    My conclusion as to ground 2 means that ground 3 must be dismissed as well. If the contentious material was not irrelevant or otherwise extraneous to the Tribunal's review, then the Tribunal could not have erred if it did, in fact, take the material in to account.

102    In any event, I do not consider that the Tribunal did take it into account. The applicant's submission that it did is entirely founded on the Tribunal's statement that it had admitted the bundle of documents including the material into evidence (see [14] above), and the following sentence in para 80 of the Tribunal's reasons (see [20] above): 'Having regard to all the evidence including the circumstances of the Applicant's conduct and offending, the Tribunal finds that the Applicant has committed sexual offences against a child with whom he had a familial relationship'. But the Tribunal was speaking of the offences against Joanne, where verdicts of guilty were reached, not about the allegations concerning Mary. Close scrutiny of the rest of the Tribunal's reasons reveals no reference to the allegations concerning Mary, express, implicit or even hinted at. I have described all aspects of the reasons that could be taken to be relevant to those allegations at [13]-[23] above and will not repeat the description here. The closest the reasons get to alluding to the allegations concerning Mary is where the Tribunal mentions that there was no evidence that the applicant was at risk of reoffending 'except in relation to matters relating to stepchildren'. But that probably just refers to the fact that the applicant was convicted of indecently dealing with one stepchild (Joanne) and so there was a risk that he could reoffend against his stepchildren. It does not necessarily indicate that the Tribunal paid any regard to the allegations concerning Mary.

103    More broadly, it is unlikely that the Tribunal would pay any regard to those allegations without specifically mentioning them at all in what was a comprehensive, detailed and careful set of reasons. To the contrary, in respect of the primary considerations of protection of the Australian community and the expectations of that community, the reasons display an exclusive focus on the crimes of which the applicant was convicted. It can safely be inferred from these matters that the Tribunal paid no regard to the allegations concerning Mary. A bland and general indication in its reasons that it had had regard to all the evidence including the circumstances of the applicant's conduct and offending cannot displace that inference.

Disposition

104    The application is dismissed. The applicant must pay the first respondent's costs of the application, to be assessed if not agreed.

Associate:

Dated:    12 August 2020