Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BOA18 [2021] FCA 943

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made by the Federal Circuit Court of Australia on 29 July 2020 be set aside and in lieu thereof there be the following order:

(a)    The applicants’ amended application for judicial review filed on 3 June 2020 be dismissed.

3.    The parties be heard as to the costs of the amended application for judicial review and the costs of the appeal.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) against orders made by the Federal Circuit Court of Australia on 20 July 2020. On that day, the Federal Circuit Court made an order that a writ of certiorari shall issue removing the record of the Immigration Assessment Authority (the Authority) decision made on 12 August 2019 into that Court for the purposes of quashing it and an order that a writ of mandamus shall issue requiring the Authority to redetermine according to law the review referred to it (BOA18 & Ors v Minister for Immigration & Anor (No 2) [2020] FCCA 1608). The Minister contends that the Federal Circuit Court erred in holding that the Authority had committed a jurisdictional error in the course of conducting its review of a fast track reviewable decision of a delegate of the Minister under Pt 7AA of the Migration Act 1958 (Cth) (the Act).

The Facts

2    The salient facts are as follows. The first to fifth respondents are a family of five and they are Sri Lankan Tamils. The first to fourth respondents arrived in Australia in 2013. The fifth respondent was born in Australia in 2016. The respondents made an application for protection visas on 29 November 2016. The principal claims were made by the first respondent and the other respondents made claims on the basis that they are members of the same family unit.

3    The second respondent was said to have suffered serious mental health issues since the birth of the fourth respondent and the respondents assert that she made an independent claim on her own behalf based on her mental illness. The primary judge noted that the first respondent purported to advance claims on behalf of the second respondent. However, this is not an issue which I need to address for the purposes of determining the appeal and I will proceed on the basis that the relevant claims for protection were made by the first respondent.

4    On 18 October 2017, the first respondent was interviewed by a delegate of the Minister and on 10 January 2018, a delegate of the Minister refused the application for protection visas. On 16 January 2018, the Authority acknowledged a referral from the Minister’s Department and on 26 February 2018, the Authority affirmed the decision of the delegate to refuse the respondents’ application. For convenience, I will refer to the Authority which made this decision as the first Authority.

5    At the time at which the first Authority acknowledged the referral of the decision to it, the first Authority provided an Information Sheet and a Practice Direction made under s 473FB of the Act to the respondents. The first Authority pointed out to the respondents that it could only consider new information in limited circumstances and that those circumstances were explained in the Fact Sheet and Practice Direction. The first Authority also advised the respondents to act quickly in their dealings with the first Authority “(as we aim to complete the review within six weeks)”. As it happened, the first Authority’s decision was made nearly six weeks later.

6    The respondents brought an application for judicial review in the Federal Circuit Court in relation to the decision of the first Authority and that application was successful. On 19 June 2019, the Federal Circuit Court (Judge Kendall) issued writs of certiorari and mandamus and upheld the following ground:

The decision is vitiated by jurisdictional error in that the IAA unreasonably failed to consider whether to exercise the discretion to invite one of the applicants, BOB18, to an interview pursuant to section 473DC of the Migration Act 1958 (Cth) in circumstances where:

(a)    she made her own claim in relation to her mental health and the availability of treatment in Sri Lanka;

(b)    her evidence in relation to the principal claims made by BOA18 may have affected the actual feeling of persuasion felt by the IAA in relation to the claims and evidence given by BOA18 and thereby denied the applicants a potentially different outcome;

and in the circumstances, the jurisdictional error was not cured by any subsequent action taken by the IAA.

(BOA18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1651 (BOA18).)

7    Judge Kendall held that the first Authority did not consider whether to exercise the power in s 473DC(3) of the Act to invite the second respondent (BOB18) to give new information and that there was no intelligible justification for that in circumstances in which:

On the material, it cannot be disputed that the IAA could have (or should have) easily discerned that [BOB18] might have been able to corroborate or provide information on the Late Claim.

(BOA18 at [85].)

8    Following the remitter, the Authority, which, for convenience, I will refer to as the second Authority, wrote a letter to the respondents and their recently appointed representatives dated 25 July 2019 in which the second Authority said, inter alia:

On 19 June 2019 a court remitted your case back to us for reconsideration. We will now proceed to reconsider your case.

It is important that you:

…

•    act quickly in your dealings with us, as a decision may be made at any time.

(Emphasis in original.)

The second Authority’s letter did not contain an invitation to the respondents to provide further information or to make submissions.

9    On 12 August 2019, the second Authority made its decision to affirm the refusal of the respondents’ application for protection visas.

10    The issues on the appeal do not call for other than a brief overview of the respondents’ claims. Those claims relate to the first respondent’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. He claimed certain involvement at the outset of the application process and then later in the process before the delegate, he claimed further important (on the face of it) involvement with the LTTE not previously disclosed. In the material, the claims made later in the process were referred to as the “Late Claims”. The first respondent worked as a “ticket checker” for the LTTE between 1997 and 1998 and then again in 1999 and is now being extorted by the Sri Lankan Criminal Investigation Division. This claim was corroborated by the second respondent. The respondents’ late claims were claims made on 30 October 2017 after the interview with the delegate on 18 October 2017. The first respondent claimed that he had worked for the LTTE’s internal security and intelligence agency in 2006 and 2007, and then for its coastal security agency in 2008. He claimed that he had not previously disclosed this information because he feared that the Australian Security Intelligence Organisation would detain him for many years and he would be separated from his family, including his wife. The delegate and the first Authority rejected the late claims.

The Second Authority’s Decision

11    The respondents’ amended application for judicial review before the Federal Circuit Court (the amended application for judicial review) concerned the second Authority’s decision. The nature of the challenge and the issues raised on the appeal and in the Notice of contention are such that only two aspects of the second Authority’s decision need be considered in any detail.

12    First, the second Authority said that it had considered whether it should exercise the power in s 473DC of the Act to get and request new information and to invite the second respondent to give new information, orally at interview or in writing, on the first respondent’s claimed involvement in the LTTE in 2006–2008 and the reasons for his delay in disclosing that involvement. The second Authority said that whilst it had taken into account the facts that the second respondent was married to the first respondent during that period and that she was not interviewed by the delegate and that information could be sought from her, it had decided not to exercise the power to do so. It explained its reasons as follows. First, the second Authority said that the delegate in her decision did not accept the late claims and the respondents had not sought to put forward any further information or submissions to the Authority about them despite having had the opportunity to do so. Further, the second Authority said that when the late claims were made in a post-interview submission, the respondents were represented and if the second respondent had relevant information, this could have been provided to the delegate. Secondly, the second Authority noted that the respondents and their representatives made no complaint to the delegate during the interview or thereafter about the second respondent not having been invited to interview, nor had they made any request for her to attend an interview. Thirdly, the second Authority was of the view that any information that the second respondent would likely give would be of limited probative value in establishing that the first respondent was involved in the LTTE in the key manner he had claimed, that is, working in the LTTE internal security and intelligence agency and coastal security agency, given it was not her who makes the claim to be so involved and the secretive nature of such claimed employment. Finally, the second Authority noted that in post-interview submissions, the respondents’ representatives had given detailed reasons for the delay in making these claims which the second Authority had fully addressed in its decision.

13    Secondly, the second Authority noted that in making its decision, it had obtained and considered new information, namely, the latest Department of Foreign Affairs and Trade (DFAT) Report (DFAT Report) concerning Sri Lanka. The second Authority said that this DFAT Report was consistent with the one referred to by the delegate, but was significantly more recent and the second Authority described it as “a highly authoritative source”. The second Authority said that the DFAT Report provided relevant information concerning the situation of Tamils, those with perceived or actual links to the LTTE, failed Tamil asylum seekers who departed illegally and people with mental health issues. The second Authority considered there were exceptional circumstances within s 473DD(a) of the Act which justified it considering this new information.

14    The second Authority also referred to the DFAT Report later in its reasons. In paragraphs 12 and 27, the second Authority made it clear that it had had regard to the country information reports identified in the referred materials. The second Authority made it clear that it gave “substantial and greatest weight” and “greatest weight” to the latest DFAT Report for the following reasons: (1) the DFAT Report is authoritative and more recent and based on the DFAT’s on the ground knowledge and discussions with a range of sources as well as taking into account the relevant and credible open source reports, including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations; and (2) the DFAT Report has been specifically prepared “with regard to” the current case load for decision-makers in Australia.

The Appeal and the Notice of Contention

15    The amended application for judicial review contained four grounds. The respondents succeeded with respect to the fourth ground which was in the following terms:

2B.    The IAA’s conduct of the fast track review which might have created in the mind of a fair-minded lay observer the apprehension that the IAA might not have brought to the review a mind open to persuasion, by reason of the cumulation [sic] of the speed within which the IAA purported to conclude its review, the denial of any opportunity to make a submission on the favourable exercise of the discretion under subsection 473DC(3), the refusal to invite any evidence from BOB18 in circumstances where it was undeniable that she was able to provide corroborative evidence, the prospective rejection of any evidence not yet heard, and the status attributed to DFAT country information which made it practically impossible to overcome with competing country information.

This ground is the subject of the Minister’s appeal to this Court. The one ground of appeal advanced by the Minister is as follows:

1.    The primary judge erred by concluding that the decision of the Immigration Assessment Authority (Authority) dated 12 August 2019 was vitiated by jurisdictional error.

Particulars

a.    The primary judge erred by concluding:

i.    at [117] that the factors identified in [116] would create in the mind of a fair-minded observer the apprehension that the Authority was engaged upon an unwelcome process and that it intended to complete that process in the shortest possible time;

ii.    at [117] that a fair-minded lay observer would apprehend that the Authority was seeking to avoid a situation where the visa applicants provided further submissions to it, which would complicate the review following remittal; and

iii.    at [118] that the factors identified in [116] would, in the mind of a fair-minded observer, create an apprehension that the Authority on remittal might not bring an impartial mind to bear upon the review.

b.    In making the impugned findings, the primary judge erred:

i.    by making findings on matters that there were not the subject of clear proof;

ii.    by failing to give express consideration to what an appropriately informed lay observer might relevantly know and apprehend; and

iii.    in assessing whether the fair-minded and appropriately informed lay observer might reasonably apprehend in the totality of the circumstances that the Authority might have determined the review under Part 7AA of the Migration Act 1958 (Cth) otherwise than on an independent and impartial evaluation of the merits.

16    The other three grounds of the amended application for judicial review failed before the Federal Circuit Court. They were in the following terms:

1A.    A constructive failure to consider whether to exercise the discretion under subsection 473DC(3) of the Migration Act 1958 (Cth) in that the consideration given in fact was not legally cognisable consideration, or in that the purported decision not to exercise the discretion was legally unreasonable.

1.    A constructive failure to exercise jurisdiction in that one stated reason for deciding not to exercise its discretion under section 477DC(3) [sic 473DC(3)] of the Migration Act 1958 (Cth) to invite the [second respondent] to give evidence, despite BOA18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1651 quashing on 19 June 2019 the IAA’s previous decision not to do so, was that ‘any information that [she] would likely give would be of limited probative value’ [5], exposed a misunderstanding of the review required by Part 7AA in that evidence must be considered before it can be rejected, which disabled the IAA from conducting the review.

2.    A constructive failure to exercise jurisdiction, or by inviting an apprehension of bias, by the IAA directing itself that the ‘country information’ supplied by the Department of Foreign Affairs and Trade was ‘highly authoritative’ [6] exposed a misunderstanding of the review required by Part 7AA as substituting the DFAT country information as the de facto test for protection, or which might have invited in the mind of an informed and fair-minded neutral observer the possibility that no other information might be capable of persuading the decision-maker.

17    In the respondents’ Notice of contention, they asked this Court to uphold each of the three grounds which had failed before the Federal Circuit Court. Prior to the hearing, the respondents abandoned Ground 1.1 in the Notice of contention which the respondents said reflected Ground 1A in the amended application for judicial review. In other words, the respondents did not seek to overturn the primary judge’s conclusion that the second Authority’s consideration of whether to exercise the discretion in s 473DC(3) of the Act to get new information from the second respondent was not legally unreasonable.

18    Ground 1.2 in the Notice of contention is said by the respondents to reflect Ground 1 in the amended application for judicial review and Ground 2 in the Notice of contention is said to reflect Ground 2 in the amended application for judicial review.

The Appeal

19    It is convenient to begin with a short summary of the primary judge’s reasons with respect to his conclusion of apprehended bias.

20    The primary judge’s general approach to each of the grounds of judicial review was to identify the ground, then to identify the competing submissions of the parties, and then to express his conclusions with respect to the merits of the ground. I will address the four paragraphs in the primary judge’s reasons which contain his reasons for concluding that the allegation of apprehended bias was made out.

21    The primary judge first makes the point that although he ultimately finds that the respondents have established apprehended bias, he did not consider the second Authority’s reliance on the DFAT Report to be “decisive”. The primary judge said that, on the contrary, it would have been unreasonable for the second Authority not to have taken the DFAT Report into account (PJ at [115]).

22    There are then three key paragraphs in his Honour’s reasons (PJ at [116], [117] and [118]).

23    His Honour said that there were three factors “bearing on” the apprehension of bias. He identified those factors as follows:

(1)    the speed with which the second Authority proceeded with the second review following the remittal from the Federal Circuit Court;

(2)    the opaque notification provided to the respondents by the second Authority following remittal, which said very little apart from notifying the respondents that they were in the second review engaged “in a race against time”, the parameters of which were not revealed; and

(3)    the absence of anything communicated from the second Authority to the respondents that they would have an opportunity to put anything to the second Authority bearing upon the reason for the remittal.

(PJ at [116].)

24    The primary judge then said that he considered that these factors would create in the mind of a fair-minded observer the apprehension that the second Authority was engaged upon an unwelcome process forced by the Federal Circuit Court and that it intended to complete that process in the shortest possible time. In addition, a fair-minded observer would apprehend that the second Authority was seeking to avoid a situation where the respondents provided further submissions to it, which would further complicate the review following remittal (PJ at [117]).

25    His Honour concluded that “these factors” would create in the mind of a fair-minded observer an apprehension that the second Authority on remittal might not bring an impartial mind to bear on the review (PJ at [118]). I infer that his Honour’s reference to “these factors” is a reference to the factors identified in the immediately preceding paragraph of his reasons, that is, at [117] (see [24] above).

26    The Minister submitted that the primary judge had erred in holding that a case of apprehended bias on the part of the second Authority had been made out. He made three principal submissions. First, the Minister submitted that the primary judge erred in applying the test of apprehended bias in that the three matters he identified in paragraph 116 of his reasons did not lead to the conclusions he expressed in paragraph 117. Secondly, the Minister submitted that the primary judge failed to recognise and apply the legal requirement that, in the case of apprehended bias, clear proof is required and that this is important because clear proof did not exist in this case. Thirdly, the Minister submitted that the primary judge, in applying the test of apprehended bias, failed to recognise and apply the principle that the fair-minded observer is to be attributed with knowledge and understanding of the statutory context or scheme within which the decision is made, and it is to be assumed that the fair-minded observer takes those matters into account.

27    In addition, the Minister submitted that it was irrelevant to an assessment of whether apprehended bias arises to consider the fact that the second Authority had the power to negate what might otherwise be an apprehension of bias by inviting comments from those affected by its decision.

28    One of the leading authorities in this country dealing with apprehended bias is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. Gleeson CJ, McHugh, Gummow and Hayne JJ described (at [6]) the governing principle of apprehended bias as being “… if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (citation omitted).

29    Their Honours went on to say (at [8]) that the application of the principle of apprehended bias requires two steps:

… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…

30    In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74, Deane J said that the area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of cases. The category which is relevant in this case is the second which covers disqualification by conduct, including published statements and consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to an apprehension of bias.

31    The principles relevant to apprehended bias in a case involving the Act were discussed by the Full Court of this Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30. In that case, an allegation of apprehended bias was made against a judge of the Federal Circuit Court. The evidence relied upon was comparative statistical analysis of that judge’s previous decisions in migration matters. The Full Court identified the relevant principles as follows:

35    … [T]he test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).

36    Other relevant principles are:

(a)    at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)    there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

Of particular relevance for present purposes is the reference to an allegation of bias being “distinctly made and clearly proved”. This was the phrase used by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69], although that was in the context of an allegation of actual bias. I was not referred to a case where a court has said that an allegation of apprehended bias must be distinctly made and clearly proved.

32    The High Court considered the application of the principles of apprehended bias in a case involving a decision made under Pt 7AA of the Act in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17). In that case, a delegate of the Minister provided to the Authority information which was extraneous and prejudicial to a referred applicant and the question was whether an apprehension of bias on the part of the Authority arose in circumstances in which the Authority, without requesting new information or interviewing the referred applicant, affirmed the decision under review.

33    Chief Justice Kiefel and Gageler J said (at [17]):

What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. That adaptation to the scheme of Pt 7AA of the standard formulation of the bias rule has a number of elements which warrant further exposition.

(Citation omitted.)

Justices Nettle and Gordon said (at [58]–[59]):

In applying the test, “it is necessary to consider … the legal, statutory and factual contexts in which the decision is made”. It is also necessary to consider “what is involved in making the decision and the identity of the decision-maker”. This draws attention to the fact that the test must recognise “differences between court proceedings and other kinds of decision-making”. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has “a 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]”.

Where, however, as here, the statutory context is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme. In this case, those key elements, summarised below, are not themselves overly complex. It is necessary to consider the statutory regime.

(Citations omitted.)

Having made the point that a fair-minded observer knows the key aspects of the statutory scheme, their Honours then identified those aspects as follows (at [94]):

… First, the Secretary must give the IAA any material which he or she considers to be “relevant” to the review. Second, the IAA must conduct its review “by considering the review material” provided under s 473CB. Third, it must do so “without accepting or requesting new information” and “without interviewing the referred applicant”, except as provided by Pt 7AA. Fourth, the IAA has no duty to accept or request new information and must not consider it except in exceptional circumstances. Fifth, the IAA is under no obligation to give the applicant any material which was before the Minister.

(Citations omitted.)

34    Their Honours also make the point that, depending on the circumstances, a way of counteracting an apprehension of bias may be to invite an applicant to comment on information under s 473DC(3) (at [100]–[102]). Subject to one matter, I did not understand there to be any dispute between the parties as to the correct legal principles. The test is as stated by Kiefel CJ and Gageler J in CNY17 (at [17]).

35    The primary judge stated the test correctly (PJ at [98] and [102]) although arguably, his conclusion may express the test in more demanding terms than is correct (PJ at [118]). However, neither party sought to make anything of this. The dispute between the parties concerned the application of the test to the facts.

36    The one qualification to what I have said in the previous paragraph is that there was a dispute between the parties about whether there is a requirement in the case of apprehended bias, as distinct from actual bias, that the allegation be distinctly made and clearly proved. The Minister submits that there is, whereas the respondents submit that this requirement is limited to cases of actual bias. It seems to me that an allegation of bias, whether actual or apprehended, is serious and must be distinctly made. The respondents clearly made an allegation of apprehended bias in this case. In terms of clear proof, the issue is what is the matter to be proved. A deliberate and knowing departure from the law is a very serious allegation and must be clearly proved. Apprehended bias involves a different test which is sometimes referred to as the “double might” test. Nevertheless, it seems to me that the Court’s willingness to attribute the necessary apprehension to the fair-minded and properly informed observer may well be influenced by the nature and seriousness of the conduct and the inferences to be drawn from it that it is said might give rise to the necessary apprehension. In my opinion, the seriousness of the possible apprehension identified by the primary judge, and attributed to the fair-minded observer (PJ at [117]) based on the conduct identified by the primary judge (PJ at [116]) and leading to the ultimate conclusion of apprehended bias (PJ at [118]), is relevant to the assessment of whether there is a case of apprehended bias. In other words, the Court will consider carefully whether the conduct in a case like the present might give rise in the mind of the fair-minded observer to an apprehension that the second Authority was engaged in a process not welcome to it and one that it would complete in the shortest possible time, and further, that the second Authority was seeking to avoid a situation where the respondents provided further submissions to it, which would further complicate the review following remittal.

37    I turn now to examine the three matters constituting the conduct of the second Authority (see [23] above) which formed the basis of the primary judge’s conclusions about the effect of those matters on the mind of the fair-minded observer (see [24] above) which led to the ultimate conclusion of the primary judge that an apprehension of bias arose (see [25] above). My conclusion is that when the three matters are considered in the statutory context in which the second Authority’s decision was made, and in the context of the procedural history of the respondents’ application, they do not lead to the primary judge’s conclusions about the fair-minded observer’s state of mind and, it follows, the primary judge erred in holding that an apprehension of bias arose.

38    The first of the three matters is the speed with which the second Authority proceeded with the review following remittal from the Federal Circuit Court. The statutory provisions which are relevant to an assessment of this matter, and indeed of the second and third matters, are as follows. First, s 473FA(1) of the Act provides that the Authority in carrying out its functions under the Act is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3” of Pt 7AA of the Act. Division 3 of Pt 7AA deals with the conduct of a review. Secondly, s 473DB(1) provides that, subject to Pt 7AA, the Authority is to review a fast track reviewable decision by considering the review material provided to it, without accepting or requesting new information and without interviewing the referred applicant. Also important is s 473DB(2) which provides as follows:

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

39    Thirdly, the following limits on the powers of the Authority to get new information (s 473DC) and to consider new information (s 473DD) are relevant.

40    Section 473DC(1) provides a definition of “new information”. It is information that was not before the Minister when the Minister made the decision under s 65 of the Act and that the Authority considers may be relevant. The subsection provides that the Authority may get new information, however, by reason of s 473DC(2), it is clear that it does not have a duty to do so. One way in which the Authority may get new information is to invite a person, orally or in writing, to give new information in writing or at an interview (s 473DC(3)). The power in s 473DC(3) may involve two steps, being a consideration of whether to exercise the power and the exercise of the power. The authorities are clear that both steps are conditioned by a requirement that the step is carried out in a way that meets the standard of legal reasonableness. In this case, the second Authority took the first step of considering the exercise of the power, but declined to take the second step of exercising the power.

41    Section 473DD sets out the circumstances in which the Authority may consider new information for the purposes of making a decision in relation to a fast track reviewable decision. The first requirement is that the Authority must be satisfied that there are exceptional circumstances to justify considering the new information. Secondly, the referred applicant must also satisfy the Authority of one of the matters in s 473DD(b) which provides as follows:

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

42    In addition to these matters of statutory context, it is also relevant to take into account the long procedural history of the respondents’ application. The late claims were made on 30 October 2017 and the delegate rejected the late claims on 10 January 2018. At no time between that date and the second Authority’s decision did the respondents seek to put forward any evidence from the second respondent of the first respondent’s involvement in the LTTE as alleged in the late claims.

43    It is true, as the respondents pointed out, that 12 working days (or 18 days) after acknowledging the remitter, the second Authority purported to complete the fast track review without hearing from the second respondent. It is also true, as the respondents pointed out, that the first Authority acknowledged the referral to it on 16 January 2018 and that almost six weeks later, the first Authority notified the respondents of its decision to affirm the delegate’s decision. However, when the statutory and procedural context is considered, those matters are insufficient to lead to the conclusions drawn by the primary judge as identified above (at [24]).

44    The second of the three matters is what the primary judge referred to as the opaque notification provided to the respondents by the second Authority following remittal, which said very little apart from notifying the respondents that they were in the second review engaged “in a race against time”, the parameters of which were not revealed. As to this matter, the following should be noted. First, there is nothing in Pt 7AA of the Act which provides that the Authority must give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time. As I have already said, the Authority is authorised to make a decision at any time after a decision has been referred to it (s 473DB(2)). The notice given by the second Authority did advise the respondents to “act quickly in your dealings with us, as a decision may be made at any time” and it may be noted that in the notice given by the first Authority, the first Authority advised the respondents to “act quickly in your dealings with us”. It is true that the second Authority did not state that the respondents had the opportunity of providing submissions as the first Authority had done in accordance with the Practice Direction issued by the President under s 473FB of the Act, but it has to be borne in mind that the matter had been through a process by the time the second Authority came to consider it. Further, any deficiency in the notice is not sufficient in itself to lead to a conclusion of apprehended bias.

45    The third of the three matters is that there was no communication from the second Authority to the respondents that they would have an opportunity to put anything to the second Authority bearing upon the reason for the remittal. The reason for the remittal was that the first Authority had unreasonably failed to consider the exercise of the discretion to invite the second respondent to interview pursuant to s 473DC(3) of the Act. The second Authority was not bound to extend such an invitation (see s 473DC(2)) and the way in which it proceeded was expressly contemplated by the Act. Having regard to the statutory and procedural context, I cannot see how this matter leads to a conclusion of apprehended bias.

46    In my opinion, the three matters considered cumulatively do not lead to a conclusion of apprehended bias. I would not attribute as a possibility to the fair-minded observer who was aware of the statutory context and procedural history of the application, a reasonable apprehension that the second Authority might not bring a fair, impartial and independent mind to the determination of the matter on its merits by reason of the three matters. With respect, it is particularly difficult to see how this can be done by the process of reasoning adopted by the primary judge. In other words, I do not consider the three matters, individually or cumulatively, might give rise in the mind of the fair-minded observer of a reasonable apprehension that the second Authority saw itself as engaged in an “unwelcome process, forced by th[e] Court” (meaning, presumably, a process that it did not want to carry out) and that it wished to do so in the shortest possible time and that it sought to avoid the respondents providing further submissions which would further complicate the review material (and presumably, engaged in the conduct it did in order to achieve this purpose).

47    I uphold the Minister’s appeal.

The Notice of contention

48    Ground 1.2 in the Notice of contention, which is said by the respondents to reflect Ground 1 of the amended application for judicial review, is as follows:

1.    The learned primary Judge erred by not finding that the Sixth Respondent’s (IAA) decision was vitiated by a constructive failure to consider whether to exercise the power under subsection 473DC(3) of the Migration Act 1958 (Cth) to hear corroborative evidence from BOB18 (who had never been interviewed by a decision-maker) (ground 1A below), or erred at [sic] in not finding that it was vitiated by legal unreasonableness (ground 1 below).

Particulars

  1.1    [not pressed]

1.2    Alternatively, the second IAA acted unreasonably in prospectively disbelieving or discounting the ‘probative value’ of BOB18’s never-heard account (AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 at [86])

49    In essence, this is a complaint directed to one of the reasons given by the second Authority for not exercising the power in s 473DC(3) to invite the second respondent to give new information, orally at interview, or in writing, about the first respondent’s claimed LTTE involvement in 2006–2008 and the reasons for his delay in disclosing that involvement. It will be recalled that the second Authority considered the second respondent’s “information” was likely to be of limited probative value in establishing that the first respondent was involved in the LTTE in the key manner he claimed given two matters, being the following: (1) the second respondent was not the one involved in the LTTE; and (2) the secretive nature of such claimed employment. It will also be recalled that this was one of a number of reasons the second Authority decided not to exercise the power in s 473DC(3). I refer to my earlier summary of the second Authority’s approach to the issue of whether it should exercise the power in s 473DC(3) of the Act (at [12]).

50    In my opinion, the second Authority’s reasoning was not flawed and it did not involve jurisdictional error. I do not need to consider whether a flaw in one of a number of reasons for deciding not to exercise the power in s 473DC(3) means that there has been a constructive failure to exercise jurisdiction or legal unreasonableness and, if so, in what circumstances, because I do not consider there is a flaw in the second Authority’s reasoning that led it to conclude that the second respondent’s “information” was likely to be of limited probative value.

51    In my opinion, this case is not similar to Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 (at [52] per Kenny and Lander JJ) where there was unfairness in condemning as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Migration Review Tribunal in a review under Pt 5 of the Act and in circumstances where they had no chance at all to answer such an accusation and the basis for the finding of dishonesty was not self-evident. Nor is this a case where a decision-maker fails to exercise caution before determining that information from a person could not affect the decision-maker’s view of the reliability or credibility of another person (AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [85] per Tracey and Mortimer JJ). The second Authority in this case did not so determine. It determined from objective circumstances that any information provided by the second respondent was likely to be of limited probative value and that was one of a number of reasons for declining to exercise the power in s 473DC(3). In my opinion, the second Authority was entitled to draw that conclusion.

52    I reject Ground 1.2 of the Notice of contention.

53    Ground 2 of the Notice of contention, which is said by the respondents to reflect Ground 2 of the amended application for judicial review, is as follows:

2.    The learned primary Judge erred by not finding that that Sixth respondent’s decision was vitiated by a constructive failure to exercise jurisdiction in that, by the Sixth Respondent directing itself at [sic] that the ‘country information’ [6] was ‘highly authoritative’ ([6]) and ‘because it is authoritative … specifically prepared with regard to the current case-load for decision-makers in Australia’([12]), exposed a misconstruction of the nature of the review under Part 7AA (ground 2 below).

Particulars

2.1    While the weight to be given to material is quintessential merits review, the fast track review miscarries if the reviewer comes to the review with a preconception that material produced by the Commonwealth is practically determinative or permits such permit to intrude upon the proper evaluation of material.

54    It is not clear to me that Ground 2 of the Notice of contention as argued by the respondents does fully reflect Ground 2 of the amended application for judicial review as it does not (apart from a hint in the written submissions) as Ground 2 of the amended application for judicial review seems to do, raise the second Authority’s approach to the DFAT Report as a particular of apprehended bias. As I have said, apart from a hint in the respondents’ written submissions, that is not part of Ground 2 of the Notice of contention or of the respondents’ argument. Nor, I note, was it part of the respondents’ argument in relation to the Minister’s appeal.

55    The essential point raised in relation to Ground 2 of the Notice of contention as developed by the respondents in their arguments is that the second Authority treated the DFAT Report as decisive without weighing all the relevant information and making its own decision as to the findings it should make. It was said that in error, the second Authority relied on the status of the DFAT Report and did not analyse all of the information.

56    The primary judge appears to have dealt with this argument by concluding that it would have been unreasonable for the second Authority not to have considered taking the most recently available DFAT Report into account (PJ at [115]). That is true, but as the respondents pointed out, that does not meet their point. They do not suggest that the DFAT Report should not have been taken into account. Rather, the respondents’ submission is that the second Authority attributed a highly authoritative character to the DFAT Report because of its status and not because of its intrinsic merit.

57    I reject the respondents’ argument. I do not consider that the second Authority improperly fettered its consideration of the country information. It is true that it considered the DFAT Report to be a highly authoritative source. It gave reasons for that conclusion and I have summarised those reasons. However, it did not ignore the other country information. It considered that information. The second Authority decided that the DFAT Report should be given “substantial and greatest weight” or “greatest weight” and, in my opinion, that was a decision it was entitled to reach.

Conclusions

58    The appeal should be allowed. The respondents’ Notice of contention fails. The orders made by the primary judge should be set aside and in their place there should be an order that the respondents’ amended application for judicial review filed on 3 June 2020 be dismissed. I will hear the parties as to the costs of the amended application for judicial review and of the appeal.

Associate:

Dated:    12 August 2021

SCHEDULE OF PARTIES